| Matter of Green v Green |
| 2013 NY Slip Op 05936 [109 AD3d 1027] |
| September 19, 2013 |
| Appellate Division, Third Department |
| In the Matter of Paul J. Green, Appellant, v Jalina M.Green, Respondent. (And Six Other Related Proceedings.) |
—[*1] Mark A. Schaeber, Liverpool, attorney for the children.
Peters, P.J. Appeal from an order of the Family Court of Madison County(McDermott, J.), entered March 9, 2012, which, among other things, dismissedpetitioner's application, in a proceeding pursuant to Family Ct Act article 6, formodification of a prior order of custody.
The parties are the parents of a son born in 2004 and a daughter born in 2008.Pursuant to a prior order of Family Court, the parties shared joint custody of the children,with respondent (hereinafter the mother) having primary physical custody. Within daysof the entry of the prior order, petitioner (hereinafter the father) commenced the first ofthe subject petitions alleging that the mother was in violation of the custody order. Overthe next several months, the father filed five more violation petitions and a petitionseeking modification of the prior custody order. Following a hearing, Family Courtfound that there had not been a change in circumstances warranting modification ofphysical custody, but that the acrimonious relationship of the parties rendered joint legalcustody inappropriate and awarded sole legal custody to the mother. Family Court alsofound that certain adjustments to the visitation schedule were necessary. The father nowappeals.
According Family Court's factual findings appropriate deference, we find no error inits determination that the father failed to establish a change in circumstances sufficient towarrant a [*2]change in physical custody (see Matter of Pecore v Pecore,34 AD3d 1100, 1101 [2006]; Matter of Peabody v Peabody, 3 AD3d 804, 804 [2004]).However, based upon this record, it is evident that the parties are unable to effectivelycommunicate and cooperate with one another. Therefore, upon consideration of all of thecircumstances, we conclude that Family Court properly amended the prior order to awardsole legal custody to the mother (see Matter of Sofranko v Stefan, 80 AD3d 814, 816[2011]; Matter of Pecore v Pecore, 34 AD3d at 1101; cf. Ehrenreich v Lynk, 74AD3d 1387, 1388 [2010]). Finally, we find that the adjustments made to thevisitation schedule are supported by the record (see Matter of White v Cicerone, 80 AD3d 1102,1103-1104 [2011], lv denied 16 NY3d 711 [2011]; Ehrenreich v Lynk,74 AD3d at 1390). In this regard, we note that, based upon the parties' testimony,clarification as to where the children are to spend Christmas was necessary and thefather's Wednesday evening visitation was adjusted only to reflect the extent to which heactually exercises such visitation.
Rose, Lahtinen and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.