| Matter of Sonley v Sonley |
| 2014 NY Slip Op 01644 [115 AD3d 1071] |
| March 13, 2014 |
| Appellate Division, Third Department |
| In the Matter of Keith Sonley, Appellant, v MeredithSonley, Respondent. (And Two Other Related Proceedings.) |
—[*1] William J. Nealon III, Glens Falls, for respondent. Edwin M. Adeson, Glens Falls, attorney for the children.
Egan Jr., J. Appeal from an order of the Family Court of Warren County (Breen, J.),dated December 3, 2012, which, among other things, granted respondent's application, ina proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are theseparated parents of three children (born in 2005, 2007 and 2008). Pursuant to astipulated order entered in July 2011, the parties agreed to joint legal custody and sharedequal parenting time with the children. In January 2012, the father commenced the firstof these proceedings seeking primary physical custody of the children. The motheropposed the father's application and filed a series of amended cross petitions seeking solelegal and physical custody. Thereafter, the father filed a petition alleging that the motherhad violated various provisions of the custody order. Following a trial, Family Courtgranted the mother's fourth amended cross petition and awarded her sole legal andphysical custody of the children. As to the violation petition, Family Court concludedthat, although the mother had violated the custody order by not allowing the children tospeak with the father on the telephone on certain occasions and by having the children'smaternal grandmother present during some of the custody exchanges, the violations werenot willful given what the court characterized as the father's malicious behavior towardsher. The [*2]father now appeals.
We affirm. "A parent seeking to modify an existing custody order bears the burden ofdemonstrating a sufficient change in circumstances since the entry of the prior order towarrant modification thereof in the child[ren]'s best interests" (Matter of Clouse v Clouse,110 AD3d 1181, 1183 [2013], lv denied 22 NY3d 858 [2014] [citationsomitted]; see Matter of Repsherv Finney, 111 AD3d 1074, 1075 [2013]). This change in circumstances, in turn,"can be established where . . . the relationship between the joint custodialparents deteriorates 'to the point where they simply cannot work together in a cooperativefashion for the good of their children' " (Ulmer v Ulmer, 254 AD2d 541, 542[1998], quoting Matter of Jemmott v Jemmott, 249 AD2d 838, 839 [1998], lvdenied 92 NY2d 809 [1998]; accord Matter of Youngs v Olsen, 106 AD3d 1161, 1163[2013]). Here, the record reflects that the parties' relationship has become antagonisticand uncivil to the point where they are unable to effectuate joint custody, therebyconstituting a sufficient change in circumstances to warrant modification of the priororder (see Matter of Tod ZZ. vPaula ZZ., 113 AD3d 1005, 1006 [2014]; Matter of Youngs v Olsen,106 AD3d at 1163; Matter ofGreene v Robarge, 104 AD3d 1073, 1075 [2013]; Matter of Spiewak vAckerman, 88 AD3d 1191, 1192 [2011]).
Having concluded that joint custody no longer was feasible, Family Court was left toconsider what custodial arrangement would be in the children's best interests. "Inevaluating the best interests of the child[ren], a court must consider numerous factors,including the quality of each parent's home environments, their past performance andstability, and each parent's relative fitness and ability to provide for the child[ren]'sintellectual and emotional development" (Matter of Hayward v Campbell, 104 AD3d 1000, 1001[2013] [citations omitted]; seeMatter of Melody M. v Robert M., 103 AD3d 932, 933 [2013], lvdenied 21 NY3d 859 [2013]). Here, the record reflects that the mother is employedand provides a stable home for the children, which she rents from her parents.Additionally, the mother's parents are available to care for the children while she works.In contrast, the father has lived in three different locations since the July 2011 custodyorder was issued, and a sergeant from the Warren County Sheriff's Department, whovisited the father's current home in April 2012, described the residence as a "disgustingmess" with "garbage everywhere" and characterized the home as "[a]bsolutely not" safefor children. Further, while in the father's care, the parties' three-year-old son was foundwandering alone at approximately 2:00 a.m. in the parking lot of the apartment buildingwhere the father's girlfriend resided, while the father and his girlfriend were asleepinside. As the evidence indicates that the mother is more able to provide a stable andsupportive home environment than the father, Family Court's determination that the bestinterests of the children would be served by granting her sole legal and physical custodyis supported by a sound and substantial basis in the record and will not be disturbed(see Matter of Melody M. v Robert M., 103 AD3d at 934; Matter of Spiewakv Ackerman, 88 AD3d at 1192-1193).
Peters, P.J., Stein and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.