| Matter of Kiernan v Kiernan |
| 2014 NY Slip Op 01223 [114 AD3d 1045] |
| February 20, 2014 |
| Appellate Division, Third Department |
| In the Matter of James Kiernan,Appellant, v Kathleen Kiernan, Respondent. (And Another RelatedProceeding.) |
—[*1] Douglas Walter Drazen, Binghamton, for respondent. Margaret McCarthy, Ithaca, attorney for the child.
Egan Jr., J. Appeal from an order of the Supreme Court (Campbell, J.), enteredOctober 12, 2012 in Cortland County, which, among other things, dismissed petitioner'sapplication, in a proceeding pursuant to Family Ct Act article 6, to modify a prior orderof custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are theparents of three children, the youngest of whom (born in 2002) is the subject of thisproceeding. In August 2011, the parties entered into an open court stipulation, whichsubsequently was incorporated into their December 2011 judgment of divorce, providingfor joint custody of the subject child with essentially equal parenting time. In October2011, the mother became embroiled in a physical altercation with her boyfriend and, inthe process of removing herself from that situation, was arrested for driving whileintoxicated. Although the child was not present for this incident, a child protectiveservices report was indicated against the mother for inadequate guardianship. Twomonths later, the mother, who worked for a cleaning service, became severely intoxicatedwhile cleaning the residence of one of her clients and fell down a set of stairs. The child,who had accompanied the mother on the day in question, managed to take the mother'scar keys away from her and called the father for help; eventually, law enforcementofficials were able to locate the child and provide assistance. As a result of this incident,the [*2]mother was charged with endangering the welfareof a child and another indicated report was filed against her—this time for placingthe child in imminent danger.
The father thereafter commenced a proceeding in Cortland County Family Courtseeking to modify the prior custody arrangement. The mother answered andcross-petitioned for sole custody, and the proceedings were transferred to the IDV part ofSupreme Court. Following a hearing and an in camera interview with the child, SupremeCourt, among other things, dismissed the father's application, finding that he failed todemonstrate a sufficient change in circumstances to warrant modification of theagreed-upon custody arrangement. This appeal by the father ensued.
We reverse. "When parties enter into stipulations resolving custody issues, thosestipulations will not be modified unless there is a sufficient change in circumstancessince the time of the stipulation, and unless modification of the custody arrangement is inthe best interests of the child[ ]" (Mathie v Mathie, 65 AD3d 527, 529 [2009] [internalquotation marks and citation omitted]; accord Matter of DiCiacco v DiCiacco, 89 AD3d 937, 937[2011]; see Matter of Smith vO'Donnell, 107 AD3d 1311, 1312-1313 [2013]; Matter of Greene v Robarge,104 AD3d 1073, 1075 [2013]). Here, although the father admittedly was aware ofthe mother's issues with alcohol at the time that he agreed to share custody with her,evidence of the mother's continuing and escalating problems in this regard, coupled withher subsequent alcohol-related arrests and the indicated child protective services reports,"was sufficient to constitute a change in circumstances requiring a review of the existingcustody arrangement in order to determine whether [such arrangement] continued to bein the child's best interests" (Matter of Martin v Mills, 94 AD3d 1364, 1366 [2012]; see Matter of Fish v Fish, 100AD3d 1049, 1050 [2012]). Accordingly, Supreme Court should have undertaken abest interests analysis. As the record before us is not sufficiently developed to permit usto make an independent determination in this regard, we remit this matter to SupremeCourt for that purpose (see Matter of Martin v Mills, 94 AD3d at 1366). Uponremittal, and in light of the length of time that has elapsed, Supreme Court may "hearadditional relevant evidentiary proof to assess the circumstances as they currently exist"(id.).
Lahtinen, J.P., McCarthy and Rose, JJ., concur. Ordered that the order is reversed, onthe law, without costs, and matter remitted to the Supreme Court for further proceedingsnot inconsistent with this Court's decision.