| Matter of Parchinsky v Parchinsky |
| 2014 NY Slip Op 01221 [114 AD3d 1040] |
| February 20, 2014 |
| Appellate Division, Third Department |
| In the Matter of Robert J. Parchinsky,Respondent, v Joann Parchinsky, Appellant. |
—[*1] Sanford N. Finkle, Troy, for respondent. Robin DePuy Shanley, Palenville, attorney for the children.
Garry, J. Appeal from an order of the Family Court of Greene County (Tailleur, J.),entered August 31, 2012, which granted petitioner's application, in a proceeding pursuantto Family Ct Act article 6, for modification of a prior order of custody.
Pursuant to a 2003 separation agreement that was later incorporated into a judgmentof divorce, petitioner (hereinafter the father) and respondent (hereinafter the mother) hadjoint legal custody of the parties' two sons (born in 1996 and 1998) and the mother hadprimary physical custody. In March 2012, the father commenced this modificationproceeding seeking primary physical custody. Following a fact-finding hearing and aLincoln hearing, Family Court granted the petition. The mother appeals.Modification of an existing custody arrangement must be predicated upon a showing ofchanged circumstances that require alteration to ensure the best interests of a child (see Matter of Hamilton vAnderson, 99 AD3d 1077, 1078 [2012]; Matter of Grant v Grant, 47 AD3d 1027, 1028 [2008]). Weagree with Family Court that the father met this burden. The father testified that themother failed to inform him immediately when the older son was diagnosed with cancerin October 2011, did not advise the father that surgical treatment was required until afterthe surgery occurred, and refused to sign authorizations permitting the father to speakwith the son's doctors until the father commenced a court proceeding to compel her to doso. He further [*2]testified that the mother interfered withhis relationship with the sons by, among other things, limiting their ability tocommunicate with him on the Internet, listening in on their telephone conversations withhim, and refusing to be flexible when their scheduled activities interfered with visitationarrangements. While the mother denied some of these claims, Family Court credited thefather, and this Court defers to such assessments (see Matter of Darrow v Darrow, 106 AD3d 1388, 1390[2013]; Matter of Torkildsen vTorkildsen, 72 AD3d 1405, 1407 [2010]). Further, "while not dispositive, theexpress wishes of older and more mature children can support the finding of a change incircumstances" (Matter ofBurch v Willard, 57 AD3d 1272, 1273 [2008]; accord Matter of Casarotti vCasarotti, 107 AD3d 1336, 1337 [2013], lv denied 22 NY3d 852[2013]), and both sons—then 13 and 15 years old—strongly and openlyexpressed a preference to reside with the father. Accordingly, Family Court properlyturned to an analysis of their best interests.
Upon considering "the relative fitness, stability, past performance, and homeenvironment of the parents, as well as their ability to guide and nurture the children andfoster a relationship with the other parent," we find no reason to disturb Family Court'sdetermination (Matter of Ariedav Arieda-Walek, 74 AD3d 1432, 1433 [2010] [internal quotation marks andcitation omitted]; see Matter ofSmith v Barney, 101 AD3d 1499, 1500-1501 [2012]; Matter of Jeker v Weiss, 77AD3d 1069, 1070 [2010]). The evidence established that both parties are lovingparents who were aware of and attentive to the sons' medical and educational needs andwere capable of providing them with suitable homes. Family Court credited the motherfor her success as the sons' primary caretaker since 2003, noting that they had done wellacademically and athletically in her care. Nevertheless, the evidence supports the court'sfurther observation that her hostility toward the father had eventually alienated the sonsfrom her as well as interfered with their relationship with him—conduct "soinconsistent with the best interests of the [sons] as to, per se, raise a strong probabilitythat [the mother] is unfit to act as custodial parent" (Matter of Greene v Robarge, 104 AD3d 1073, 1075-1076[2013] [internal quotation marks and citations omitted]; see Jeannemarie O. v RichardP., 94 AD3d 1346, 1348 [2012]). Additionally, the mother acknowledged thatshe did not permit the sons to visit their maternal grandparents, despite the sons' desire todo so, because her relationship with the grandparents had broken down. By contrast, thefather testified that he would encourage the sons to visit these grandparents, as well asother extended family members who lived near his Brooklyn home; he further testifiedthat he would encourage visits with the mother, and that he had provided them with cellphones to maintain contact with her while they temporarily resided with him. The recordthus supports the conclusion that the father is more likely than the mother to support andnurture the sons' relationship with the other parent (see Matter of Anthony MM. v Jacquelyn NN., 91 AD3d1036, 1038 [2012]).
Although a move to Brooklyn would require the sons to leave the Greene Countyschool district they had attended since 2003, the record reveals that academic and athleticadvantages were available to them in Brooklyn, and both sons wished to pursue theseopportunities. We note the mother's argument relative to an issue about which FamilyCourt found the father to have been untruthful, but find that the court took appropriatesteps addressing this matter, and the record supports the conclusion that there was noresulting deleterious impact upon the sons. Considering all of the evidence—and,in particular, the mother's hostility toward the father and the sons' strongly expressedpreference to reside with him—we find a sound and substantial basis in the recordfor the conclusion that granting physical custody to the father was in their best interests(see Matter of Casarotti v Casarotti, 107 AD3d at 1339-1340; Matter ofBurch v Willard, 57 AD3d at 1273; Matter of Passero v Giordano, 53 AD3d 802, 804 [2008]).[*3]
Peters, P.J., Lahtinen and Rose, JJ., concur.Ordered that the order is affirmed, without costs.