| Matter of Palmatier v Carman |
| 2015 NY Slip Op 01498 [125 AD3d 1139] |
| February 19, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Sean M. Palmatier,Respondent, v Amelia E. Carman, Appellant. |
John M. Scanlon, Binghamton, for appellant.
Christopher A. Pogson, Binghamton, for respondent.
Alena Van Tull, Binghamton, attorney for the child.
Egan Jr., J. Appeal from an order of the Family Court of Broome County(Connerton, J.), entered June 24, 2013, which granted petitioner's application, in aproceeding pursuant to 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 child born in 2006.[FN*] In May 2010, the parties consented toan order awarding the mother sole custody of the child with increasing periods ofvisitation to the father. That order was modified in October 2011—again uponconsent of the parties—to provide for, among other things, alternating weekendvisitations for the father. The child resided with the mother until October 2012, at whichtime the child was removed from the mother's residence—a filthy, rundown trailerlittered with animal feces—by the local department of social services and placedwith the father. Shortly thereafter, the father commenced the instant proceeding seekingcustody. Following a hearing, Family Court awarded the parties joint legal custody, withprimary physical custody to the father and visitation to the mother on the first, third,fourth and, if applicable, fifth weekend of every month—plus additional periodsof visitation. This appeal by the mother ensued.
[*2] We affirm. "A parent seeking to modify an existingcustody order bears the burden of demonstrating a sufficient change in circumstancessince the entry of the prior order to warrant modification thereof in the child[ ]'s bestinterests" (Matter of Paul A. vShaundell LL., 117 AD3d 1346, 1348 [2014], lv dismissed and denied24 NY3d 937 [2014] [internal quotation marks and citations omitted]; see Matter of Hayward vCampbell, 104 AD3d 1000, 1000 [2013]). Here, the record reflects that, at thetime that the child was removed from the mother's care in October 2012, the child wasliving in what could only be described as squalid and fetidconditions—specifically, the child was residing in a filthy, dilapidated trailer thatwas overrun with multiple dogs, cats and rabbits, covered in animal feces andoverflowing litter boxes and infested with flies and cockroaches. According to thecaseworker who visited the mother's residence, the smell of urine and feces was evidentimmediately upon entering the trailer, and the room that the child shared with the motherand the mother's boyfriend was crowded with rabbit cages and reeked of a "foul odor."Although the child had her own bed in this shared room, neither her bed nor her mother'sbed had sheets. Additionally, the father testified that, during the relevant time period, thechild would appear for visitations in stained, mismatched clothes with her hair "tanglyand in knots" and smelling of, among other things, kerosene. Such proof, in our view, ismore than sufficient to demonstrate the requisite change in circumstances, therebytriggering a best interests analysis (see Matter of Michael GG. v Melissa HH., 97 AD3d 993,994 [2012]; see also Matter ofEunice G. v Michael G., 85 AD3d 1339, 1340 [2011]; Matter of Cole v Reynolds, 8AD3d 703, 704 [2004]).
"The primary concern in any custody matter is, of course, the best interests of thechild[ ] and, to that end, Family Court must give due consideration to, among otherthings, each parent's ability to furnish and maintain a suitable and stable homeenvironment for the child[ ], past performance, relative fitness, ability to guide andprovide for the child[ ]'s overall well-being and willingness to foster a positiverelationship between the child[ ] and the other parent" (Matter of Darrow v Darrow,106 AD3d 1388, 1390 [2013] [internal quotation marks and citation omitted]; see Matter of Sonley v Sonley,115 AD3d 1071, 1072 [2014]; Matter of Hayward v Campbell, 104 AD3d at1001). Applying that standard to the matter before us, there is no question that FamilyCourt's decision to award primary physical custody to the father is supported by a soundand substantial basis in the record.
Although the mother had—by the time of the hearing—moved to a newtrailer (located a short distance away from her prior residence), the record makes clearthat, prior to the child's removal in October 2012, she permitted the child to live inabsolutely deplorable conditions. In addition to the sanitary issues previously outlined,the child resided in this two-bedroom trailer with her mother, the mother's boyfriend andher maternal grandparents, the latter of whom cared for the child while the mother andher boyfriend worked the third shift at a local business. Although the mother insisted thatthe child was never left alone with her grandfather, the record reflects that the child'sgrandfather is a convicted sex offender. The record further reflects that the child engagedin various forms of self harm while she was in the mother's care and, during the2011-2012 school year, was absent on 44 occasions and tardy on 34 occasions with 17early dismissals. While the mother testified that her new work schedule would make iteasier for her to get up in the morning and get the child ready for school in a timelyfashion, she acknowledged that she still was working an overnight shift, which wouldrequire the child to spend five nights each week with her maternal aunt.
Although the father admittedly had little contact with the child until he was awardedvisitation in May 2010, there is no dispute that he regularly exercised his visitation rightsfrom that point on. At the time of the hearing, the father was residing in a four-bedroomhouse with his fiancee and their two children—with the parties' child sharing abedroom with her half sister. [*3]As the father had afull-time job, his fiancee would get the child ready for school in the morning, and hetypically would get the child off of the school bus in the afternoon. Since going to livewith the father, the child has missed only three days of school and is seeing a counselorto address her behavioral issues. Although the parties do not appear to have a great dealof contact with one another, the father's testimony indicates a willingness to foster apositive relationship between the child and the mother, as well as an ability to behave ina cooperative fashion and conduct himself in a manner consistent with the child's bestinterests.
Based upon such proof, Family Court concluded that the father is more able toprovide a clean, safe, stable and supportive home for the child than the mother and thatthe child's best interests, in turn, would be served by granting the parties' joint legalcustody with primary physical custody to the father. Upon our review of the record, wediscern no basis upon which to disturb Family Court's sound resolution of this matter.The mother's remaining arguments on this point, to the extent not specifically addressed,have been examined and found to be lacking in merit.
Lahtinen, J.P., Lynch and Devine, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *:An order of filiation wasentered in December 2006, and the father was ordered to pay child support beginning inMarch 2007.