| Matter of Lawrence v Kowatch |
| 2014 NY Slip Op 04990 [119 AD3d 1004] |
| July 3, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 In the Matter of Joan Lawrence, Respondent, v DaleKowatch, Appellant. |
Rosemarie Richards, Gilbertsville, for appellant.
Jehed F. Diamond, Delhi, attorney for the children.
Stein, J.P. Appeal from an order of the Family Court of Delaware County (Becker,J.), entered April 1, 2013, which granted petitioner's application, in a proceedingpursuant to Family Ct Act article 6, to modify a prior order of custody.
The parties are the parents of a daughter (born in 1999) and a son (born in 2001). In2009, Family Court awarded respondent (hereinafter the father) sole custody of thechildren, with visitation to petitioner (hereinafter the mother), and this Court affirmedupon appeal (Matter of Kowatchv Johnson, 68 AD3d 1493 [2009], lv denied 14 NY3d 704 [2010]). The2009 order was subsequently amended to permit the mother to attend medicalappointments and educational conferences, but was otherwise left unchanged. In 2012,the mother commenced this proceeding for modification of the prior order, alleging thatsubstance abuse and domestic violence between the father and his wife (hereinafter thestepmother) had escalated to the point that police involvement was required, thestepmother had driven with the children while "high," and the children had to be placedoutside of the father's home. Following fact-finding and Lincoln hearings, FamilyCourt granted the parties joint legal custody of the children, with primary residentialcustody awarded to the mother and specified parenting time to the father. The father nowappeals.
We affirm. A court-ordered investigation by the Delaware County Department ofSocial Services (hereinafter DSS) resulted in an indicated report for child maltreatmentby the father and [*2]stepmother due to their substanceand alcohol abuse, which—in the father's case—constituted a paroleviolation. In contrast, although DSS noted that the mother's history of alcohol abuse hadresulted in multiple indicated reports against her involving the subject children and themother's older children during the years 1997 to 2007, it found no current safetyconcerns with the mother's home. In addition, the mother had remarried and relocated tothe children's hometown to be closer to them and to be within their current schooldistrict, and DSS concluded that the mother and her husband were committed toproviding the children with a safe and stable environment. This evidence "demonstrateda sufficient change in circumstances reflecting a real need for change in order to insurethe continued best interest[s] of the child[ren]" (Matter of Gasparro v Edwards, 85 AD3d 1222, 1223[2011] [internal quotation marks and citation omitted]; see Matter of Kiernan vKiernan, 114 AD3d 1045, 1046 [2014]).
Factors to be considered in determining whether a modification will serve thechildren's best interests include "the parents' ability to provide a stable home environmentfor the child[ren], the child[ren's] wishes, the parents' past performance, relative fitness,ability to guide and provide for the child[ren's] overall well-being, and the willingness ofeach parent to foster a relationship with the other parent" (Bowman v Engelhart, 112AD3d 1187, 1187 [2013] [internal quotation marks and citations omitted]; seeMatter of Kowatch v Johnson, 68 AD3d at 1495). Here, while the mother hasstruggled in the past with alcohol abuse and attempting to meet the children's emotionaland educational needs (Matter of Kowatch v Johnson, 68 AD3d at 1495-1496),she has since remarried and is now able to provide the children with a safe, stable andnurturing home, and has become more engaged with the children's educational andmedical needs. In contrast, as Family Court noted, the father's household had "descendedinto chaos" caused by alcohol and substance abuse, requiring both the intervention ofDSS and voluntary placement of the children outside the home, and leading to thedeterioration of the children's emotional health and relationship with the father andstepmother. Considering all the circumstances,[FN1] and deferring to Family Court'scredibility assessments (see Bowman v Engelhart, 112 AD3d at 1187-1188), weconclude that the court's decision is supported by a sound and substantial basis in therecord.[FN2]
McCarthy, Garry, Lynch and Devine, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1:Family Court erred tothe extent that it revealed the substance of the children's communications during theLincoln hearing; "[a]bsent a direction to the contrary, the child[ren]'s right toconfidentiality should remain paramount" (Matter of Susan LL. v Victor LL., 88 AD3d 1116, 1119 n 4[2011] [internal quotation marks and citations omitted]).
Footnote 2:While not determinative,we note that the position advanced by the attorney for the children at the hearing and onappeal is in accord with Family Court's determination (see Matter of Robert AA. v ColleenBB., 101 AD3d 1396, 1399 n 2 [2012], lv denied 20 NY3d 860 [2013]).