| Matter of Breitenstein v Stone |
| 2013 NY Slip Op 08476 [112 AD3d 1157] |
| December 19, 2013 |
| Appellate Division, Third Department |
| In the Matter of Tarah Breitenstein, Respondent, v DominicStone, Appellant. |
—[*1] Paul Connolly, Delmar, for respondent. Lara P. Barnett, Schenectady, attorney for the child.
Stein, J. Appeal from an order of the Family Court of Schenectady County (James,J.H.O.), entered January 23, 2012, which granted petitioner's application, in a proceedingpursuant to Family Ct Act article 6, to modify a prior order of custody.
Pursuant to a June 2008 custody order, petitioner (hereinafter the mother) andrespondent (hereinafter the father) shared joint legal and physical custody of their child(born in 2002). Following the father's incarceration in 2010 and shortly before hisrelocation to a correctional facility out of state in 2011, the mother commenced thismodification proceeding seeking sole physical and legal custody. After a trial, FamilyCourt, among other things, awarded the mother sole legal and physical custody, providedthe father with the right to access the child's medical and educational information anddirected that the father have at least three visits per year with the child while he wasincarcerated, as well as unlimited and liberal telephone and email access. The father nowappeals, and we affirm.
Initially, the father's challenge to that part of Family Court's order that establishedvisitation while he was incarcerated is rendered moot because the father has since beenreleased from federal prison (see Matter of Samantha WW. v Gerald XX., 107 AD3d1313, 1315 [2013]; Matterof Miller v Miller, 77 AD3d 1064, 1065 [2010], lv dismissed anddenied 16 NY3d 737 [2011]). However, inasmuch as the father's appeal from thatportion of the order that awarded [*2]the mother solecustody is not restricted to the duration of the father's incarceration, we reject theargument advanced by the mother and the attorney for the child that the entire appealshould be dismissed as moot (see Matter of Samantha WW. v Gerald XX., 107AD3d at 1315).
Turning to the merits, the mother bore the burden of demonstrating a change incircumstances that reflects a genuine need for modification of the existing custody orderto insure the continued best interests of the child (see Matter of Clouse v Clouse, 110 AD3d 1181, 1183[2013]; Matter of Casarotti vCasarotti, 107 AD3d 1336, 1337 [2013], lv denied 22 NY3d 852[2013]). Although Family Court did not explicitly articulate the facts on which it relied inreaching its decision, the record is sufficient for this Court to determine if modificationof the prior custody order was warranted (see Matter of Clouse v Clouse, 110AD3d at 1183). Based upon our independent review of the record, we find that thefather's incarceration constituted a change in circumstances that reflected a real need formodification of the custody order (see Matter of Susan A. v Ibrahim A., 96 AD3d 439, 439[2012]; Matter of Gregio vRifenburg, 3 AD3d 830, 831 [2004]).
We next address the question of what custodial arrangement is in the child's bestinterests. Initially, we note the absence of anything in the record to indicate that, but forthe father's incarceration, joint custody would not have continued to be appropriate.Nonetheless, the father's incarceration presented logistical restrictions on the parties'ability to effectively and efficiently communicate with each other, rendered sharedphysical custody impossible and generally created limitations on the father's ability tofulfill his obligations as a custodial parent (see Matter of Depuy-Wade v Wade,298 AD2d 655, 656 [2002]). In this regard, the mother testified that, while the father wasincarcerated, she made all of the decisions regarding the child and the father did notinitiate any contact with her about the child. Notwithstanding the father's testimony thathe had liberal access to a telephone and email, the mother was unaware that she couldcall him and testified that it normally took him at least one day to respond to her emails.Additionally, the father acknowledged that the mother could not reach him while he wasat work five days a week for several hours each day and that he had, at times, exhaustedhis monthly allotted telephone time. Further, the father was unable to identify the child'smedical provider or teacher, which reflected his limited involvement in the child's dailylife. After considering the appropriate factors relevant to custody determinations (seeEschbach v Eschbach, 56 NY2d 167, 172-173 [1982]) and according deference toFamily Court's ability to observe the witnesses and assess their credibility (see Matter of Festa vDempsey, 110 AD3d 1162, 1163 [2013]), we find a sound and substantial basisfor that court's determination that an award of sole physical and legal custody to themother was in the child's best interests (see Matter of Greene v Robarge, 104 AD3d 1073,1075-1076 [2013]; Matter ofJoseph G. v Winifred G., 104 AD3d 1067, 1068-1069 [2013], lv denied21 NY3d 858 [2013]; Matter ofBush v Bush, 104 AD3d 1069, 1071-1072 [2013]) and we discern no basis todisturb it.[FN*][*3]
Finally, under the circumstances here, andconsidering the information available to Family Court, as well as the concerns of themother, the court properly exercised its discretion in declining to conduct an in camerainterview with the child (seeMatter of VanBuren v Assenza, 110 AD3d 1284, 1285 [2013]; Matter of DeRuzzio v Ruggles,88 AD3d 1091, 1091-1092 [2011]). To the extent not specifically addressed herein,the father's remaining contentions have been reviewed and found to be without merit.
Rose, J.P., Spain and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: We note that themother's petition, which led to the order currently on appeal, only sought sole physicaland legal custody for the time period that the father was incarcerated and until he was"home and back on his feet." After his release from prison, the father filed a petitionseeking to modify the existing order, which is currently pending in Family Court.Inasmuch as our decision herein merely addresses the custodial arrangement found to bein the child's best interests during the father's incarceration, it is not determinative as tothe father's pending petition.