| Matter of Cid v DiSanto |
| 2014 NY Slip Op 08075 [122 AD3d 1094] |
| November 20, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Alexandra Perez Cid, Formerly Knownas Alexandra DiSanto, Respondent, v Patrick DiSanto, Appellant. (And AnotherRelated Proceeding.) |
Ted J. Stein, Woodstock, for appellant.
Jay A. Kaplan, Kingston, for respondent.
Ephie Trataros, Kingston, attorney for the child.
Jane M. Bloom, Monticello, attorney for the child.
Lahtinen, J.P. Appeal from an order of the Family Court of Ulster County (Lalor,J.H.O.), entered March 13, 2013, which, among other things, granted petitioner'sapplication, in a proceeding pursuant to Family Ct Act article 6, to modify a prior orderof custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are thedivorced parents of two children (born in 1999 and 2001). The parties' judgment ofdivorce included joint legal custody and kept in force the terms of a March 2008 orderentered during the divorce action in which parenting time was divided eight days to thefather and six days to the mother on a two-week cycle. The order further provided thatany subsequent claim of change in circumstances would be measured from the end of thedivorce trial testimony in December 2007. The mother filed an amended petition inOctober 2011 seeking to modify custody by awarding her legal and physical custody. Thefather cross-petitioned for, among other things, legal and physical custody. After alengthy fact-finding hearing, as well as Lincoln hearings, Family Court issued adetailed decision in which it dismissed the father's cross petition and granted the mother'spetition and awarded her custody. The father received supervised, therapeutic visitation.The father appeals.
We affirm. The father's initial argument that the Judicial Hearing Officer (hereinafterJHO) did not have jurisdiction to preside over the matter is without merit. The recordcontains written consent from counsel for each party agreeing that the matter be heard bythe JHO and "there is nothing in the record indicating that the JHO was not lawfullyassigned to their proceedings" (Matter of McDonald v Reed, 68 AD3d 1181, 1181 [2009],lv dismissed 14 NY3d 758 [2010]; accord Matter of LaRussa v Williams, 114 AD3d 1052,1053 [2014]).
We find no merit in the father's contention that there had not been a sufficient changein circumstances since December 2007 to warrant a modification of the custody order."Modification of an existing custody arrangement is appropriate where the petitionerestablishes by a preponderance of the evidence that there has been a change incircumstances and that modification is necessary to ensure the best interests of thechildren" (Matter of Seacord vSeacord, 81 AD3d 1101, 1103 [2011] [internal quotation marks and citationsomitted]). Although the parties' relationship had been acrimonious at the time of the priororder, there was an abundance of evidence that, since such time, the relationship hadsignificantly deteriorated and the existing arrangement had become unworkable as wellas a detriment to the children (see Matter of Greene v Robarge, 104 AD3d 1073, 1075[2013]). The parties presented sharply divergent versions of events and Family Courtfound credible the testimony of the mother as well as several witnesses she called, butfound the father to lack credibility. According deference to those credibilitydeterminations (see e.g. Matter of LaRussa v Williams, 114 AD3d at 1055), therecord reveals a litany of bizarre and detrimental actions by the father, often directlyinvolving the children and aimed at degrading the mother, hindering her access to thechildren and undermining her relationship with the children. The evidence clearlyestablished a change in circumstances and also that modification was in the best interestsof the children (see e.g. Matterof Dobies v Brefka, 83 AD3d 1148, 1150-1152 [2011]).
Finally, the father asserts that he has been de facto denied visitation. Initially, wenote that the issue may now be moot in that the order provided for the terms of thefather's visitation to be reconsidered after six months. In any event, the order did notprohibit or condition visitation upon participation in counseling, but rather required thatvisitation take place under the supervision of a professional (see Matter of Castillo v Luke,63 AD3d 1222, 1224 [2009]; Matter of Marchand v Nazzaro, 55 AD3d 968, 969 [2008];Posporelis v Posporelis, 41AD3d 986, 991-992 [2007]).
Stein, McCarthy, Rose and Clark, JJ., concur. Ordered that the order is affirmed,without costs.