| Matter of Virginia C. v Donald C. |
| 2014 NY Slip Op 01218 [114 AD3d 1032] |
| February 20, 2014 |
| Appellate Division, Third Department |
| In the Matter of Virginia C., Respondent, v DonaldC., Appellant. Lisa K. Miller, as Attorney for the Children, Appellant. (And Six OtherRelated Proceedings.) |
—[*1] Lisa K. Miller, McGraw, attorney for the children, appellant. Randolph V. Kruman, Cortland, for respondent.
Peters, P.J. Appeal from an order of the Supreme Court (Campbell, J.), entered May3, 2012 in Cortland County, which, among other things, granted petitioner's application,in a proceeding pursuant 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 Alexander C. (born in 2003) and Andrew C. (born in 2007). In August 2010,the parties stipulated to an order granting them joint legal and physical custody of thechildren, with physical custody alternating weekly and the mother having finaldecision-making authority. Over the next six months, a flurry of violation and familyoffense petitions were filed by the parties and each commenced a proceeding seekingsole custody of the children. Following a fact-finding hearing conducted over the courseof several days, as well as two Lincoln hearings with Alexander, Supreme Courtgranted the mother sole legal and physical custody and provided [*2]alternate weekend visitation to the father. Both the fatherand the attorney for the children appeal.
As a preliminary matter, this appeal has not been rendered moot by a subsequentFamily Court order resolving a violation petition filed by the father. That order, whichwas entered on consent, made minor changes to the visitation schedule, but otherwise leftintact the provisions of the order on appeal relating to custody. As such, we find no basisto conclude that the father relinquished his right to pursue this appeal (see Hughes v Gallup-Hughes,90 AD3d 1087, 1088 [2011]; Matter of Wayman v Ramos, 88 AD3d 1237, 1238 [2011],lv dismissed 18 NY3d 868 [2012]; Matter of Claflin v Giamporcaro, 75 AD3d 778, 779[2010], lv denied 15 NY3d 710 [2010]; Matter of Siler v Wright, 64 AD3d 926, 927-928 [2009]).
Addressing the merits, an existing custody order may be modified upon a showingthat there has been a change in circumstances reflecting a real need for change so as toinsure the continued best interests of the children (see Matter of Breitenstein v Stone, 112 AD3d 1157, 1157[2013]; Matter of Deyo vBagnato, 107 AD3d 1317, 1318 [2013], lv denied 22 NY3d 851[2013]). Here, the record overwhelmingly establishes that the parents are unable tocooperate or effectively communicate with one another for the sake of their children.They have disagreed on nearly every significant aspect of the children's lives and theirrelationship has deteriorated to the point that they are hostile, embattled and mistrustfulof one another, which has resulted in frequent police intervention. Further, testimonyestablished that the weekly change of custody was causing Alexander anxiety and wasotherwise negatively impacting the children. Given these circumstances, Supreme Courtproperly concluded that joint custody is not a viable option for these parents (see Matter of Youngs v Olsen,106 AD3d 1161, 1163 [2013]; Matter of Greene v Robarge, 104 AD3d 1073, 1075[2013]; Matter of Coley vSylva, 95 AD3d 1461, 1461-1462 [2012]).
Our analysis thus turns to what custodial arrangement would promote the children'sbest interests. "Relevant factors to be weighed include maintaining stability in thechildren's lives, the quality of respective home environments, the length of time thepresent custody arrangement has been in place, each parent's past performance, relativefitness and ability to provide for and guide the children's intellectual and emotionaldevelopment, and the effect the award of custody to one parent would have on thechildren's relationship with the other parent" (Nolan v Nolan, 104 AD3d 1102, 1104 [2013] [internalquotation marks and citations omitted]; see Matter of Clouse v Clouse, 110 AD3d 1181, 1183[2013], lv denied 22 NY3d 858 [2014]). We defer to Supreme Court's factualfindings and credibility assessments and will not disturb its custody determination whereit is supported by a sound and substantial basis in the record (see Matter of King v Barnes,100 AD3d 1209, 1210 [2012]; Helm v Helm, 92 AD3d 1164, 1166 [2012]; Matter of Williams v Williams,66 AD3d 1149, 1151 [2009]).
As the record reveals and Supreme Court aptly observed in its lengthy decision, boththe mother and the father are caring and concerned parents, each with demonstratedstrengths and weaknesses. At the time of the hearing, the mother had recently lost her jobdue to violation of her employer's Internet usage policy. She acknowledged that she hasdifficulty controlling her temper and testified that both she and the father inappropriatelyused corporal punishment in disciplining the children in the past. Although the fathermade multiple allegations that such improper corporal punishment has continued in themother's home and commenced a child protective investigation when he found bruises onAndrew's legs, these allegations were deemed unfounded by Child Protective Services,and Supreme Court found that neither party continues to [*3]use any sort of inappropriate corporal punishment. Themother has a history of calling the police to investigate somewhat innocuous andexplainable injuries on the boys, such as scratches resulting from pets, and appears to beunaware of the negative impact that this may have upon the children. Further, the motherexercised questionable judgment when, despite staying at a domestic violence safe housewith the children following the parties' most recent separation, she continued tocommunicate with and see the father—and even engaged in sexual activities withhim—but would not allow him to see the children.
On the other hand, Supreme Court found that it was the mother alone who took aproactive role in the children's medical care and mental health needs, whereas the fatherwas hesitant, or even averse, to engaging in services. Shortly after the commencement ofthe joint custody arrangement, the mother initiated counseling for Alexander because hewas exhibiting problems in school, acting out aggressively and had expressed suicidalideations. While the mother was supportive of the therapy and followed through with thetreatment recommendations, the father disapproved of both the counselor and "theprocess" in general. As a result, the child missed appointments that were scheduledduring the father's visitation weeks and the father ultimately instructed the mother thatappointments were not to be made for Alexander during his parenting time. Furthermore,despite expressed and valid concerns by the counselor regarding severe delays inAndrew's speech development, the father disagreed with the professionalrecommendation that the child be immediately evaluated for early intervention services.In contrast, the mother promptly followed through with the recommendation andobtained speech therapy for Andrew, who, as both parties now agree, has shownconsiderable improvement.
The record also amply supports Supreme Court's finding that the father engaged inconduct that served to alienate the mother from the children. The mother testified that thefather would often berate her and call her derogatory names in the presence of thechildren, and he continued to denigrate the mother during the fact-finding hearing byrepeatedly referring to her as a liar and manipulator. Moreover, the father refused toinform the mother of the day care the children were attending during his parenting time,and testimony established that it was Alexander's understanding that details regarding hisday care were to be kept secret from his mother. The father also violated court orders, onone occasion refusing to return the children to the mother during her parenting weekeven after he was served with an order to show cause directing him to do so.Additionally, on more than one instance, the father left the state with the children to visita female acquaintance without notifying the mother that he was doing so, as required bythe order then in effect.
Notably, the record reflects that the father not only discussed court proceedings withAlexander as well as with others in his presence, but also brought the children to hisattorney's office—without their counsel present—in order to be preppedwith respect to these proceedings. Supreme Court found, and we agree, that the father'sconduct in that regard "demonstrate[d] a remarkable lack of judgment and insight intothe enormous conflict this inflicts on the children"—especially Alexander who isbeing treated for anxiety directly related to the parties' marital discord—andreflects his willingness to place his needs ahead of his children. Furthermore, due to thispotential for manipulation, the court understandably gave very little weight toAlexander's testimony and the expressed wishes of the children (see Eschbach vEschbach, 56 NY2d 167, 173 [1982]; Matter of Goodfriend v Devletsah-Goodfriend, 29 AD3d1041, 1042 [2006]).
Clearly, this was a difficult case. Supreme Court appropriately weighed andconsidered the applicable factors, and ultimately ruled that the facts tipped in favor of themother. Contrary [*4]to the father's assertion thatSupreme Court's findings were inaccurate and showed bias, the record reveals that thecourt's findings rest upon its assessment of the credibility of the witnesses and thecharacter, temperament and sincerity of the parents (see Matter of Michelle V. v Brandon V., 110 AD3d 1319,1324-1325 [2013]; Matter ofMemole v Memole, 63 AD3d 1324, 1326-1327 [2009]). Such credibilitydeterminations necessarily carry weight—particularly in a close case such asthis—and we find no basis in the record to disturb them (see Matter of Pizzo v Pizzo, 94AD3d 1351, 1352-1353 [2012]; Matter of Meier v Meier, 79 AD3d 1295, 1296 [2010]).Thus, notwithstanding the contrary position of the attorney for the children (see Matter of Hitchcock vKilts, 4 AD3d 652, 654 [2004]; Matter of McGivney v Wright, 298AD2d 642, 644 [2002], lv denied 99 NY2d 508 [2003]; Matter of Perry vPerry, 194 AD2d 837, 838 [1993]), we find sufficient support in the record forSupreme Court's decision that an award of sole legal and physical custody to the motheris in the children's best interests.
Stein, Rose and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.