| Matter of Shannon J. v Aaron P. |
| 2013 NY Slip Op 07733 [111 AD3d 829] |
| November 20, 2013 |
| Appellate Division, Second Department |
| In the Matter of Shannon J., Appellant, v Aaron P.,Respondent. Piper P., Nonparty Appellant. |
—[*1] Joan H. McCarthy, Fishkill, N.Y., attorney for the child, the nonparty appellant PiperP. Daniel Gartenstein, Kingston, N.Y., for respondent.
In a child custody proceeding pursuant to Family Court Act article 6, the motherappeals, and the child separately appeals, from an order of the Family Court, DutchessCounty (Watson, J.), dated October 24, 2012, which, after a hearing, denied the mother'spetition to modify a prior order of the same court (Forman, J.), dated April 15, 2011, soas to award the mother sole physical custody of the subject child.
Ordered that the order dated October 24, 2012, is reversed, on the facts, withoutcosts or disbursements, and the petition is granted.
The parties were married in April 2001, and the subject child was born in 2003.Since the father was in the Navy, the family, which included the mother's son from aprevious relationship, moved a number of times before settling in New York. In 2007,the parties separated, and pursuant to a separation agreement incorporated but notmerged into the parties' judgment of divorce, the parties shared joint legal custody of thechild, with the mother having physical custody and the father having liberal visitation. InDecember 2008, the mother and her new fiancÉ, who was also in the military,moved with the mother's children to the west coast. In May 2009, the mother gave birthto a third child.
In April 2011, the father offered to care for the subject child while the motherunderwent surgery and prepared to move from Washington to Colorado, where hercurrent husband was to be stationed. The mother, intending this childcare arrangement tobe temporary, agreed, and the child began residing with her father in New York. Toenroll the child in school in his local school district, the father prepared a documententitled "Child Custody/Child Support" (hereinafter the agreement), which stated that hewould have "primary physical possession" of the child. The father and mother signed theagreement, and their signatures were notarized. The father never told the mother that heintended the custody change to be permanent.[*2]
The father then filed a petition in the FamilyCourt to modify the custody provisions of the parties' judgment of divorce so as to awardhim physical custody of the child, relying on the agreement. In an order dated April 15,2011, the Family Court granted the father's petition to modify, on consent, and awardedphysical custody to the father. The mother, who was not served with the father'smodification petition, found out about the order when the father sent her a photograph ofthe order attached to a text message. In September 2011, after she moved to Coloradoand recovered from her surgery, the mother commenced this proceeding to changecustody. Following a hearing, the Family Court denied the mother's petition and foundthat it would be in the child's best interests to remain in the physical custody of the father.
The general rule is that in the absence of a subsequent change in circumstance, thecourt should defer to the agreement of the parties (see Matter of Grisanti v Grisanti, 4 AD3d 471, 473[2004]). "However, '[n]o agreement of the parties can bind the court to a dispositionother than that which a weighing of all of the factors involved shows to be in the child'sbest interest' " (id. at 473, quoting Friederwitzer v Friederwitzer,55 NY2d 89, 95 [1982]) "Since the Family Court's custody determination is largelydependent upon an assessment of the credibility of the witnesses and upon the character,temperament, and sincerity of the parents, its determination should not be disturbedunless it lacks a sound and substantial basis in the record" (Matter of Dobbins vVartabedian, 304 AD2d 665, 666 [2003]). However, " '[a]n appellate court would beseriously remiss if, simply in deference to the finding of a Trial Judge, it allowed acustody . . . determination to stand where it lack[ed] a sound and substantialbasis in the record' " (Matter of Grisanti v Grisanti, 4 AD3d at 474, quotingMatter of Gloria S. v Richard B., 80 AD2d 72, 76 [1981]).
Upon weighing the appropriate factors (see Eschbach v Eschbach, 56 NY2d167 [1982]), we find that the Family Court's determination that the best interests of thechild would be served by remaining in the father's physical custody lacked a sound andsubstantial basis in the record, and that the child's best interests will be served byawarding the mother sole physical custody of the child. The Family Court failed to givesufficient weight to the mother's testimony, which it credited, that she only intended forthe father to have custody of the child temporarily while she underwent a hysterectomyand moved from Washington to Colorado with her new husband. The record here showsthat the mother, who stays at home to care for her children, has been the primarycaregiver throughout the child's life, while the father had limited involvement with thechild until the mother transferred custody to him (see Matter of Eddington v McCabe, 98 AD3d 613, 614[2012]). Furthermore, while living with her mother, the child thrived both at home and atschool (see Matter of Russell vRussell, 72 AD3d 973, 975 [2010]). The child, who has been a part of a militaryfamily for the majority of her life, relocated along with her family many times bothduring and after her parent's marriage. There is no evidence that these frequentrelocations have been detrimental the child's intellectual or emotional development. TheFamily Court also erred in finding that the mother replaced the "father figure" in thechild's life. The record contains no evidence to support a finding of parental alienationagainst the mother.
The Family Court also failed to give sufficient weight to the fact that the child'srelationship with her half-siblings, who reside with the mother, will continue to bedisrupted if she remains in the father's care, as the record demonstrates that the child andher half-siblings have a close and healthy relationship. Courts will not disrupt siblingrelationships unless there is an overwhelming need to do so (see Eschbach vEschbach, 56 NY2d at 173; Matter of Ebert v Ebert, 38 NY2d 700, 704[1976]; Matter of Murray v Hall, 294 AD2d 504, 505 [2002]). Furthermore, boththe report of the Dutchess County Office of Probation and the attorney for the childrecommended returning the child to the mother's care, and the child communicated thatpreference (see Matter of Cheryv Richardson, 88 AD3d 788, 789 [2011]). Recommendations of court-appointedevaluators and the position of the attorney for the child are not determinative, but theyare factors to be considered and are entitled to some weight (see Baker v Baker, 66 AD3d722, 723-724 [2009]; Matter of Kozlowski v Mangialino, 36 AD3d 916, 917[2007]). The child's preference, while not determinative, may also be indicative of thechild's best interests (see Dintruff v McGreevy, 34 NY2d 887, 888 [1974]; Cieri v Cieri, 56 AD3d409, 410 [2008]).
The mother's remaining contention is without merit.[*3]
Accordingly, the Family Court's determinationlacked a sound and substantial basis in the record, and the Family Court should havegranted the mother's petition. Dickerson, J.P., Chambers, Roman and Miller, JJ., concur.