| Matter of Colona v Colona |
| 2015 NY Slip Op 01494 [125 AD3d 1123] |
| February 19, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Nathan Colona, Respondent, v RebeccaColona, Appellant. (And Another Related Proceeding.) |
James A. Mack, Binghamton, for appellant.
Norbert Higgins, Binghamton, for respondent.
John M. Scanlon, Binghamton, attorney for the children.
Garry, J. Appeal from an order of the Family Court of Broome County (Sullivan,J.H.O.), entered August 7, 2013, which, among other things, granted petitioner'sapplication, in a proceeding pursuant to Family Ct Act article 6, to modify a prior orderof custody.
The parties have two children (born in 2001 and 2005). In 2011, they stipulated to anorder by which respondent (hereinafter the mother) had sole custody, and petitioner(hereinafter the father) had an established schedule for parenting time with the children.In July 2012, the father took the children from New York to his home in Colorado for ascheduled four-week period. Thereafter, the children remained in Colorado, continuingto reside with their father, and attended Colorado schools through the following schoolyear. In May 2013, the mother traveled to Colorado to retrieve the children and bringthem back to New York. The father filed motions for temporary emergency jurisdictionand abduction prevention in a Colorado court. That court declined to exercise temporaryemergency jurisdiction and enforced the New York custody order, directing the father toallow the children to return to New York with the mother. Shortly after the childrenreturned to New York, the father commenced the first of these proceedings seekingmodification of custody, and the mother commenced a proceeding to modify visitation.Following fact-finding and Lincoln hearings, Family Court, among other things,granted sole custody to the father and placed the children with him during the schoolyear, established parenting time with the mother consisting of seven weeks during thesummer and [*2]other break and vacation timethroughout the year, directed the parties with regard to transportation and contact, andretained jurisdiction relative to the scheduling provisions for a two-year period. Themother appeals.
Family Court properly found that the father had demonstrated a change incircumstances since the 2011 order "reflecting a real need for change in order to insurethe continued best interests of the child" (Matter of Greene v Robarge, 104 AD3d 1073, 1075[2013]; see Matter of John O. vMichele O., 103 AD3d 939, 941 [2013]). The parties disagree as to why thechildren remained in Colorado following the father's scheduled summer visitation, butthe father testified that they did so at the mother's request, and the court found thistestimony more credible than the mother's claim that she reluctantly agreed to let themremain upon the father's insistence. This Court defers to such assessments of credibility(see Matter of Cobane vCobane, 119 AD3d 995, 996 [2014]; Matter of Yishak v Ashera, 90 AD3d 1184, 1185 [2011]).The record reveals that the mother's life had become unstable around the time of thechildren's departure for Colorado. She and the children had previously lived with thematernal grandmother for approximately five years. However, in March 2012, followingan altercation with the mother, the grandmother asked the mother to leave, lodged acomplaint with law enforcement authorities and obtained an order of protection againstthe mother. Thereafter, child protective workers became involved and, as part of a safetyplan, the mother and children moved in with the mother's sister, where they stayed untilthe children left for Colorado in July 2012. Shortly thereafter, the sister asked the motherto leave because they were not getting along. The mother then moved to an apartmentwhere she resided until May 2013, when she returned to the grandmother's home afterretrieving the children from Colorado. The mother testified that she moved back in withthe grandmother at the children's request, but from the testimony of the grandmother andthe father, it appeared that the grandmother had insisted upon the move to protect thechildren after the mother's paramour threatened the mother in the children'spresence.
The father and his fianc�e testified that the older child did very well academicallywhile residing with them in Colorado. The younger child, who has special needs,received tutoring, speech therapy and other assistance, and showed significant academicand behavioral improvements. The fianc�e further testified that the children formed close bonds with her two daughters froma prior relationship and her infant twin daughters from her relationship with the father,who also resided in the father's Colorado home. The instability of the mother's lifestyleafter March 2012, the children's physical separation from the mother and their adjustmentto the Colorado environment were sufficient to demonstrate a change in circumstanceswarranting an examination of their best interests (see Matter of Hayward v Campbell, 104 AD3d 1000,1000-1001 [2013]; Matter ofStarkey v Ferguson, 80 AD3d 799, 800-801 [2011]).
Some of the factors relevant to an evaluation of the children's best interests includethe quality of the home environments provided by each parent, their relative fitness andability to provide for the children's emotional and intellectual development, and eachparent's willingness to foster the children's relationship with the other parent (see Matter of Clouse v Clouse,110 AD3d 1181, 1183 [2013], lv denied 22 NY3d 858 [2014]; Matter of Gasparro v Edwards,85 AD3d 1222, 1223 [2011]). The father and his fiancee testified that the childrenmaintained a regular daily schedule while residing with them that involved chores, familydinner, homework and an 8:30 p.m. bedtime. The father was in the process of buying histhree-bedroom home, where the children initially shared a bedroom with each other, butlater chose to share rooms with the fianc�e's older daughters, who were close to their ages. The fianc�e and father stated thatthey limited the children's exposure to media, such as television and computers, andencouraged them to play outside. The father stated that he supported the children'srelationship with their mother and, although he believed that the older child, at 10, wastoo young for a cell phone, had [*3]bought her a phone toenable the children to keep in close contact with their mother.
The father testified that the mother had demonstrated some significant issues withalcohol during the period that the children were residing with him; although the motherand her witnesses denied such issues, Family Court credited the father's testimony in thisregard. In addition, the grandmother and the mother's sister testified that they did notapprove of the men the mother associated with and that some of the men were unsafe forthe children to be around. The father further testified that the children used vulgarlanguage when they first moved in with him and had to be taught not to do so.
Contrary to the mother's contention, Family Court did not err in consideringcircumstances that were no longer in existence at the time of the hearing, as the court hasbroad discretion to establish the parameters of proof and may consider any relevantmatter in evaluating a child's best interests (see Porcello v Porcello, 80 AD3d 1131, 1134 [2011]; Matter of Gardner v Gardner,69 AD3d 1243, 1244 [2010]). Considering the evidence as a whole and accordingdeference to the court's factual assessments and credibility determinations, we find asound and substantial basis in the record for its determination that it was in the children'sbest interests to transfer custody to the father (see Matter of Paul A. v Shaundell LL., 117 AD3d 1346,1349-1350 [2014], lv dismissed and denied 24 NY3d 937 [2014]; Matter of Bush v Bush, 104AD3d 1069, 1071-1072 [2013]).
Finally, the mother contends that the attorney for the children improperly advocatedfor his opinion of their best interests rather than for the children's preferences, and thatFamily Court improperly relied upon his recommendation. Notably, a child's wishes,which must be expressed and advocated by his or her attorney in a suitable manner(see 22 NYCRR 7.2 [d]), are properly taken into account in determining thechild's best interests, but are not dispositive (see Porcello v Porcello, 80 AD3d at1134; Matter of Torkildsen vTorkildsen, 72 AD3d 1405, 1407 [2010]). Here, the court made clear in itsdecision that it did not place undue reliance upon the opinions expressed by the attorneyfor the child. Upon review, we find that the record provides an independent sound andsubstantial basis for the court's decision, and we find no reason to disturb it.
Lahtinen, J.P., Rose and Devine, JJ., concur. Ordered that the order is affirmed,without costs.