| Matter of Joseph WW. v Michelle WW. |
| 2014 NY Slip Op 04090 [118 AD3d 1054] |
| June 5, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Joseph WW., Respondent, v MichelleWW., Appellant. |
Norbert A. Higgins, Binghamton, for appellant.
Hinman, Howard & Katell, LLP, Binghamton (Jennifer Donlan of counsel), forrespondent.
Sarah Loughran, Binghamton, attorney for the child.
Stein, J. Appeal from an order of the Family Court of Broome County (Connerton,J.), entered July 5, 2012, which granted petitioner's application, in a proceeding pursuantto Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are theunmarried parents of a son (born in 2006). In May 2011, Family Court, on consent of theparties, awarded sole custody of the child to the mother, with supervised parenting timeto the father, and issued a one-year stay away order of protection against the father.Beginning shortly thereafter, the father filed numerous violation and custody petitionsalleging, among other things, that the mother had interfered with his parenting time. As aresult, Family Court issued a temporary order in October 2011 awarding the fatherunsupervised visitation with the child on alternating weekends and certain holidays, andvacated the order of protection. Following hearings on the father's violation petitions, thecourt found that the mother had failed to honor the visitation provisions of the court'scustody orders. Hearings were then held on the father's petition to modify custody,including a Lincoln hearing with the child, after which the court awarded thefather sole custody of the child and provided for parenting time with the mother onalternating [*2]weekends and holidays. The mother nowappeals from that order.[FN1]
We affirm. To the extent that the mother argues that the father failed to demonstrate asufficient change in circumstances to warrant modification of the prior order, we disagreeinasmuch as the record reflects that the mother frequently violated the terms of the priorcustody orders by depriving the child of visitation with the father and that circumstancessurrounding the mother's fitness to care for the child had deteriorated (see Matter of Parchinsky vParchinsky, 114 AD3d 1040, 1041 [2014]; Matter of Graham v Morrow, 111 AD3d 1178, 1179[2013]).[FN2]Thus,Family Court was left to consider what custodial arrangement was in the child's bestinterests (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]). Morespecifically, as limited by the mother's brief, the issue before us distills to whether FamilyCourt properly transferred custody of the child from the mother to the father.
The hearing testimony established that the father—who also has an older sonwho visits with him on weekends—lives with his girlfriend and her two childrenin a home that she owns located in the child's school district, both are gainfully employedand the girlfriend's mother is an active support system for the family. At the time of thehearing, the mother, who also has an older daughter, had moved several times in the 18months since the parties separated and, by the end of the hearing, had moved in with herboyfriend. The mother was unemployed and on temporary assistance, claimed to have aphysical disability for which she had not applied for disability benefits and, up until theend of the hearing, had a suspended driver's license. The mother frequently used orallowed the use of vulgar and racist language and denigrated the father, as well as herdaughter's father, in the children's presence.[FN3]Additionally, the mother and child hadlived in conditions that Family Court described as "deplorable," "sloppy" and "chaotic,"and the mother had participated in damaging a home from which she and her childrenwere being evicted. Further, the mother was indicated for educational neglect byallowing her daughter to miss considerable periods of time from school—and therecord reflects that the subject child also missed significant time fromkindergarten—and failed to cooperate with the court's attempts to order a homestudy.
The record also establishes that the mother deprived the [*3]child of any visitation with the father for a protractedperiod of time after the parties separated and had no credible explanation for completelydisregarding the terms of the custody order to which she had consented, or for her failureto abide by Family Court's subsequent temporary order awarding the father parentingtime on Thanksgiving.[FN4]The court properly gave great weight tosuch persistent interference with the relationship between the father and the child inassessing the mother's overall fitness to act as a custodial parent (see Matter of Greene vRobarge, 104 AD3d 1073, 1075 [2013]; Brodsky v Brodsky, 267 AD2d897, 898 [1999]).
Moreover, Family Court's decision reflects that it considered the impact of theseparation of the child from his half sister (see Matter of Williams v Williams, 66 AD3d 1149, 1152[2009]; Matter of Robinson v Davis, 58 AD3d 1041, 1042 [2009]), but that suchseparation was outweighed by other factors. When we consider all of the factors relevantto the child's best interests (seeMatter of Virginia C. v Donald C., 114 AD3d 1032, 1033 [2014]; Matter of Bush v Bush, 104AD3d 1069, 1071 [2013]), and accord deference to the court's determination that themother's testimony lacked credibility (see Matter of Michelle V. v Brandon V., 110 AD3d 1319,1323 [2013]; Matter of Youngsv Olsen, 106 AD3d 1161, 1163 [2013]; Matter of Melody M. v Robert M., 103 AD3d 932, 934[2013], lv denied 21 NY3d 859 [2013]), we find a sound and substantial basis inthe record for the conclusion that an award of custody to the father is in the child's bestinterests (see Matter of Parchinsky v Parchinsky, 114 AD3d at 1041; Matter of LaRussa v Williams,114 AD3d 1052, 1055 [2014]). The parties' remaining contentions do not persuadeus otherwise.
Peters, P.J., McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1:We note that, while theattorney for the child did not appeal, she supports the position advanced by the mother.
Footnote 2:Although Family Courtdid not expressly make a finding of a change in circumstances, such finding can bereadily inferred. In any event, this Court has the authority to independently review therecord, which we find amply demonstrates the requisite change in circumstances (see Matter of Clouse v Clouse,110 AD3d 1181, 1183 [2013], lv denied 22 NY3d 858 [2014]; Matter of Casarotti v Casarotti,107 AD3d 1336, 1337 [2013], lv denied 22 NY3d 852 [2013]).
Footnote 3:The mother testified thatthe father also denigrates her and that the father had assaulted her on more than oneoccasion. However, we note that Family Court found that the mother's derogatorycomments were more pervasive than the father's and that she was not a credible witness.
Footnote 4:The mother's argumentthat Family Court erred in relying on certain findings contained in the order followingthe violation hearings is not properly before us, as she neither appealed from that finalorder nor objected at the modification hearing when the court stated that it was takingjudicial notice of the prior violation proceedings and testimony (see Matter of Lagano v Soule,86 AD3d 665, 667 n 5 [2011]; Matter of Benjamin v Benjamin, 48 AD3d 912, 914[2008]).