| Matter of Nelson v Perea |
| 2014 NY Slip Op 04091 [118 AD3d 1057] |
| June 5, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Bruce R. Nelson,Appellant-Respondent, v Mayra E. Perea, Respondent-Appellant. (And AnotherRelated Proceeding.) |
Pope & Schrader, LLP, Binghamton (Kurt Schrader of counsel), forappellant-respondent.
Lauren S. Cohen, Johnson City, for respondent-appellant.
Carman M. Garufi, Binghamton, attorney for the child.
Garry, J. Cross appeals from an order of the Family Court of Broome County(Charnetsky, J.), entered October 23, 2012, which, among other things, partially grantedthe parties' applications, in two proceedings pursuant to Family Ct Act article 6, tomodify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are thedivorced parents of a son (born in 2005). During the marriage, the parties resided in theTown of Lisle, Broome County. In July 2008, the parties entered into a separationagreement—with the understanding that the mother would be relocating toCanada, where she had resided prior to the marriage—providing for joint legal andphysical custody of the child, with physical placement alternating every two weeks. Theseparation agreement was later incorporated, but not merged, into the parties' judgmentof divorce.
In August 2011, shortly before the child was to start first grade, the mother informedthe [*2]father that, based on their inability to come to anagreement regarding the child's schooling, she would not transfer physical placement tohim for his scheduled two-week period of parenting time and that, instead, she wasenrolling the child in a school in Canada. The father thereafter filed a petition formodification seeking primary physical custody of the child. The mother cross-petitionedfor primary physical custody.[FN1]Following a fact-finding hearingconducted over five days, as well as a Lincoln hearing, Family Court partiallygranted each petition and ordered, among other things, that the parties would alternatephysical custody on a yearly basis. The father appeals, and the mother cross-appeals.
The parties do not dispute that there has been a change in circumstance necessitatinga modification of the agreed-upon custody arrangement to ensure the continued bestinterests of the child (see Matterof LaRussa v Williams, 114 AD3d 1052, 1053 [2014]; Matter of Youngs v Olsen, 106AD3d 1161, 1163 [2013]). However, the father challenges Family Court's reasoning,contending that the stated factors, including the child having reached school age, did notprovide a sound and substantial basis to support the court's finding and, conversely, thatFamily Court did not give sufficient weight to the mother's unilateral decision to retainthe child in Canada. Upon review of the record, we agree with Family Court'sdetermination that the child attaining school age, the frequent changing of residencesduring the school year required by the agreed-upon custody arrangement, theimpracticality of attending schools in two different countries, and the parties' admittedinability to agree on a plan for the child's schooling constitute a change in circumstancesreflecting a need for modification of the physical custody arrangement (see Matter of Wilson vHendrickson, 88 AD3d 1092, 1093-1094 [2011]; Matter of Claflin vGiamporcaro, 75 AD3d 778, 779-780 [2010], lv denied 15 NY3d 710[2010]; Ehrenreich v Lynk,74 AD3d 1387, 1390 [2010]).[FN2]
Upon concluding that modification was warranted, Family Court was then requiredto determine what physical custody arrangement would best promote the child's bestinterests. "Relevant factors to be weighed include maintaining stability in the child[ ]'sli[fe], the quality of respective home environments, the length of time the present custodyarrangement has been in place, each parent's past performance, relative fitness and abilityto provide for and guide the child[ ]'s intellectual and emotional development, and theeffect the award of custody to one parent would have on the child[ ]'s relationship withthe other parent" (Matter ofVirginia C. v Donald C., 114 AD3d 1032, 1033 [2014] [internal quotationmarks and citations omitted]; see Matter of Sonley v Sonley, 115 AD3d 1071, 1072[2014]; Matter of Tod ZZ. vPaula ZZ., 113 AD3d 1005, 1006 [2014]).
Here, based on the totality of the circumstances, we disagree with Family Court'sdetermination, and find that alternating physical custody on a yearly basis is not in thechild's best interests (see Matterof Williams v Boger, 33 AD3d 1091, 1092 [2006]; compare Matter of Whitcomb vSeward, 86 AD3d 741, 744-745 [2011]; Matter of Cuozzo v Ryan, 307AD2d 414, [*3]415 [2003]). Although presentingdiffering arguments, both parents, as well as the attorney for the child, argue against thisdisposition on this appeal. As a result of the alternating school schedule in placepreviously, the child has missed activities and field trips at both schools, and this canonly be expected to increase. The superintendent of the school district in Canada wherethe child's school is located opined in a letter that the child's social, emotional andacademic development would best be served by attending only one school, and we agree.Despite the hardships and separation necessarily arising from the physical distancebetween the two parents, it is the child's own stability that takes increasing precedence ashe ages (see Matter of Moorehead v Moorehead, 197 AD2d 517, 519 [1993],appeal dismissed 82 NY2d 917 [1994]).
The evidence adduced at the fact-finding hearing established that the partiesconsistently followed the alternating custody arrangement for three years prior to theevents precipitating these proceedings, and that both parents communicate effectivelywith each other, have stable home environments, and are willing to foster a relationshipwith the other parent. While indisputably the mother interfered with the father's parentingtime by retaining the child in Canada and enrolling him in school there—conductwhich is not to be condoned—the proof also established that the mother's actionswere based, in part, on the advice of a Canadian lawyer and after unsuccessfuldiscussions with the father. Moreover, the mother was the child's primary caretaker thefirst three years of his life, she is—according to the father—the morenurturing parent, she is involved with all facets of the child's development, includingremaining in contact with the child's teachers and medical providers in Canada and NewYork, her home is within walking distance to the child's school, she resides with herparents, with whom the child has a close relationship, and her extendedfamily—several of whom are the child's age—live within close proximity toher home. The child's half sister also resides with the mother, and several witnessestestified that the child and the half sister have a close and loving relationship (seeMatter of Ebert v Ebert, 38 NY2d 700, 704 [1976]; Matter of Valenti v Valenti, 57AD3d 1131, 1135 [2008], lv denied 12 NY3d 703 [2009]). We agree withFamily Court that both parents are fit, and that the father and the child have a lovingbond, but find that the child's need for greater stability during the school year, takentogether with the foregoing proof, supports awarding primary physical custody to themother (see Ehrenreich v Lynk, 74 AD3d at 1390; Matter of Williams vBoger, 33 AD3d at 1092). We further note that this is in accord with the positionadvanced by the attorney for the child (see generally Hughes v Gallup-Hughes, 90 AD3d 1087,1090 [2011]; Matter of Rundallv Rundall, 86 AD3d 700, 702 [2011]).[FN3]
The transfer of primary physical custody to the mother requires readjustment of theprevious visitation schedule. Accordingly, the matter is remitted to Family Court for thispurpose, unless the parties are able to agree upon a new arrangement. Pursuant to FamilyCourt's custody order of October 2012, the child is currently living with the father andattending school in New York, and the child's best interests are served by finishing thisschool year there. Physical custody is scheduled to be transferred to the mother one weekafter the conclusion of the 2013-2014 school year. Pending a permanent determination,and unless the parties agree [*4]otherwise, the child shallspend two weeks with the mother following this transfer, and shall then spend theremainder of the summer of 2014 with the father, until one week before school opens forthe next year, when the child shall return to the mother's residence. Thereafter, and unlessthe parties agree otherwise, the father shall temporarily have parenting time with thechild in accord with the provisions of the October 2012 order pertaining to weekend,Christmas, spring break and holiday visitation for the parent who does not have custody,with temporary arrangements for the summer of 2015 to be made if necessary by FamilyCourt. Pending redetermination, all other terms of the prior order shall remaintemporarily in effect.
Peters, P.J., Lahtinen, McCarthy and Devine, JJ., concur. Ordered that the order ismodified, on the law, without costs, by reversing so much thereof as ordered thatphysical custody of the child should alternate on a yearly basis; primary physical custodyawarded to respondent commencing one week after the conclusion of the 2013-2014school year, matter remitted to the Family Court of Broome County for furtherproceedings not inconsistent with this Court's decision and, pending said proceedings,petitioner shall have temporary visitation as set forth herein; and, as so modified,affirmed.
Footnote 1:The mother alsocommenced a proceeding in Canada seeking primary physical custody of the child, whichshe purportedly discontinued.
Footnote 2:The parties' priorcustody agreement did not provide for where the child would attend school uponreaching school age (see Matter of Claflin v Giamporcaro, 75 AD3d at 779-780).
Footnote 3:We disagree with thefather's assertion that the mother, a Canadian citizen who receives significant financialsupport and child-care assistance from her family in Canada, should be compelled torelocate to New York as a condition of awarding her primary physical custody(compare Matter of Siler v Siler, 293 AD2d 826, 828 [2002], appealdismissed 98 NY2d 691 [2002]).