| Matter of Clouse v Clouse |
| 2013 NY Slip Op 06753 [110 AD3d 1181] |
| October 17, 2013 |
| Appellate Division, Third Department |
| In the Matter of Wendy Clouse, Appellant, v Jason Clouse,Respondent. |
—[*1] J. Russell Langwig, Schoharie, for respondent. Teresa A. Meade, Middleburgh, attorney for the child.
Peters, P.J. Appeal from an order of the Family Court of Schoharie County (James,J.H.O.), entered June 22, 2012, which dismissed petitioner's application, in a proceedingpursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are theparents of a son born in 2001. Following the parties' separation in 2009, a Californiacustody order was entered on consent awarding them joint legal custody of the child withphysical custody to the father and reasonable visitation to the mother. The order alsopermitted the father to temporarily relocate to Michigan with the child. The child lived inMichigan with the father for one year, at which time he came to stay with the mother inNew York. The parties disagree as to whether this was intended to be a visit or apermanent move.
During the child's stay in New York, the mother filed a family offense petitionagainst the father based on his conduct during certain telephone conversations. As aresult, Family Court, Otsego County, issued an ex parte temporary order of protection infavor of the mother and the child which remained in effect until June 2011, when thepetition was dismissed after a hearing. Shortly after the conclusion of those courtproceedings, the father returned to Michigan with the child without the foreknowledge ofthe mother. The mother thereafter commenced this [*2]proceeding seeking physical custody of the child. FamilyCourt assumed jurisdiction and, following a fact-finding hearing, dismissed the petition.The mother appeals.
Family Court properly assumed jurisdiction over this proceeding. As California nolonger had exclusive continuing jurisdiction over this matter (see 28 USC§ 1738A [d]), New York could assume jurisdiction for the purpose of modifyingthe California order so long as it "[was] the home state of the child on the date of thecommencement of the proceeding, or was the home state of the child within six monthsbefore the commencement of the proceeding and the child is absent from this state but aparent . . . continues to live in this state" (Domestic Relations Law §76 [1] [a]; see Domestic Relations Law § 76-b). "Home state" is defined as"the state in which a child lived with a parent . . . for at least six consecutivemonths immediately before the commencement of a child custody proceeding" (DomesticRelations Law § 75-a [7]).
Here, there is no dispute that the child lived with the mother in New York for thesix-month period prior to the commencement of this proceeding. While the fathercontends that Michigan is the child's home state, that the mother wrongfully retained thechild in New York, and that the child's time here must therefore be considered a"temporary absence" from his home state (see Domestic Relations Law §75-a [7]; Matter of Joy vKutzuk, 99 AD3d 1049, 1050 [2012], lv denied 20 NY3d 856 [2013]),the record does not support such claim. It is uncontested that the mother sent a one-wayticket to bring the child to New York and that, during the entire year the child lived withthe mother, the father commenced no legal proceedings seeking the child's return orclaiming that the mother was wrongfully withholding him. Thus, we cannot say thatFamily Court erred in exercising jurisdiction over this proceeding (see Matter of Destiny EE. [KarenFF.], 90 AD3d 1437, 1440 [2011], lv dismissed 19 NY3d 856 [2012];compare Matter of Joy v Kutzuk, 99 AD3d at 1050-1051; Matter of Felty v Felty, 66AD3d 64, 70 [2009]).
We next address Family Court's dismissal of the mother's petition. A parent seekingto modify an existing custody order bears the burden of demonstrating a sufficientchange in circumstances since the entry of the prior order to warrant modification thereofin the child's best interests (seeMatter of Casarotti v Casarotti, 107 AD3d 1336, 1337 [2013], lv denied— NY3d —, 2013 NY Slip Op 88251 [2013]; Matter of Greene v Robarge,104 AD3d 1073, 1075 [2013]). Although Family Court failed to explicitly addresswhether the mother demonstrated a change in circumstances since entry of the Californiaorder, instead stating only that she "failed to meet her burden of proof" on the petition,we have the authority to independently review the record (see Matter of Casarotti vCasarotti, 107 AD3d at 1337; Matter of Whitcomb v Seward, 86 AD3d 741, 742 [2011]).Here, the evidence that the mother had been the child's primary caretaker and de factocustodian for nearly a year prior to the filing of the instant custody petition, and that thefather did not take any steps to enforce his custodial rights during that time, constitutes achange in circumstances warranting a consideration of the child's best interests (see Matter of Hetherton vOgden, 79 AD3d 1172, 1173-1174 [2010]; Matter of Mingo v Belgrave, 69 AD3d 859, 860 [2010];cf. Matter of Chittick v Farver, 279 AD2d 673, 676 [2001]).
In evaluating whether a modification of physical custody would serve this child'sbest interests, factors to be considered include maintaining stability in his life, the qualityof the respective home environments, the length of time the present custody arrangementhas been in place, each parent's past performance, relative fitness and ability to guide andprovide for his well-being, and the willingness of each parent to foster a relationship withthe other parent (see Matter ofBush v Bush, 104 AD3d 1069, 1071 [2013]; Matter of Melody M. v RobertM., 103 [*3]AD3d 932, 933 [2013], lvdenied 21 NY3d 859 [2013]). Although the parties here both maintain a lovingrelationship with their son, the father has demonstrated an ability to provide the childwith greater stability. The mother moved twice during the approximate one-year periodthe child was living with her in New York, with one such move occurring just weeksbefore the end of the school year, resulting in an interruption of the child's schooling.Moreover, the mother has displayed an unwillingness to foster a relationship between thechild and his father, as evidenced by her failure to inform the father when she and thechild moved residences and her actions in obtaining an unwarranted order of protectionthat barred all contact between the father and the child for more than six months.
By contrast, when the child resided with the father, he consistently facilitated visitsand communication between the child and the mother. Testimony adduced at thefact-finding hearing further established that the child has performed well in school whilein the father's care, is active in sports and spends a great deal of time with his father, whohas taken an active interest in his social and intellectual development. The child alsoregularly sees his paternal grandmother, shares a good relationship with the father'slive-in girlfriend and her children, and has expressed a strong desire to live with hisfather. While we do not condone the father's conduct in taking the child back toMichigan without notifying the mother in advance, we also cannot ignore the fact that hehad a valid order providing him with physical custody. Considering the totality of thecircumstances and giving due deference to Family Court's determination that the father'stestimony was more credible (see Matter of Hayward v Campbell, 104 AD3d 1000, 1001[2013]; Matter of Mahoney vRegan, 100 AD3d 1237, 1238 [2012], lv denied 20 NY3d 859 [2013]),we find a sound and substantial basis for the conclusion that the existing physicalcustody arrangement remains in the child's best interests.
Rose, Lahtinen and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.