| Matter of Bailey v Blair |
| 2015 NY Slip Op 02816 [127 AD3d 1274] |
| April 2, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Ralph B. Bailey Jr.,Appellant, v Kimberly J. Blair, Respondent. |
Lisa A. Burgess, Indian Lake, for appellant.
Michelle I. Rosien, Philmont, for respondent.
Joseph E. Nichols, South Glens Falls, attorney for the child.
Egan Jr., J. Appeal from an order of the Family Court of Warren County (Breen, J.),entered November 27, 2013, which partially granted petitioner's application, in aproceeding pursuant to Family Ct Act article 6, for modification of a prior order ofcustody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are theparents of a son (born in 2002). Pursuant to a 2012 order of custody, which wasincorporated but not merged into the parties' judgment of divorce, the parties wereawarded joint legal custody of the child with essentially equal parenting time. Followingthe parties' divorce, the mother and her adult son from another relationship moved inwith Finn, her now spouse, and the spouse's adult daughter, Ellen, the latter of whom hasa lengthy history of mental health issues.
In June 2013, during the course of what the mother described as the "random act of adelusional child," Ellen assaulted the mother from behind—striking her in thehead with a broom handle as she was performing yard work. Shortly thereafter, thefather, believing that Ellen posed a threat to the parties' child, commenced thismodification proceeding by order to show cause seeking, among other things, atemporary order removing the child from the mother's home pending the development ofa safety plan and a stay-away order of protection against Ellen and in favor of the child.Family Court, among other things, granted the requested relief and, following a hearingon the order to show cause, approved a limited visitation schedule for the mother, [*2]provided that such visitations not take place at the mother'sresidence.
The father, who resided with his adult son from a prior relationship and his son'sgirlfriend, thereafter filed an amended petition seeking, among other things, sole legaland physical custody of the child. Following a hearing, Family Court made minormodifications to the prior order of custody—directing that the child have nounsupervised contact with Ellen and that he not be compelled to engage in any familycounseling that involved Ellen—but otherwise continued the joint legal and sharedphysical custody arrangement previously in place. This appeal by the father ensued.
"A parent seeking to modify an existing custody order bears the burden ofdemonstrating a sufficient change in circumstances since the entry of the prior order towarrant modification thereof in the child[ ]'s best interests" (Matter of Palmatier v Carman,125 AD3d 1139, 1139 [2015] [internal quotation marks and citations omitted]; see Matter of Sherwood vBarrows, 124 AD3d 940, 940 [2015]). As noted previously, Ellen has a longhistory of mental illness, and the record reflects that, in the months preceding her June2013 attack upon the mother, she engaged in a series of acts—some of which weredirected toward the mother and/or involved violence—that required policeintervention. Although the child apparently did not witness any of these incidents, he waspresent in the mother's household on the day that she was attacked by Ellen with thebroom handle and, given the chaotic conditions then existing in the mother's household,we are satisfied that the father demonstrated a sufficient change in circumstances totrigger a best interests analysis (see Matter of Clark v Hart, 121 AD3d 1366, 1367[2014]).
As to the disposition fashioned by Family Court, "[t]he primary concern in anycustody matter is, of course, the best interests of the child[ ] and, to that end, FamilyCourt must give due consideration to, among other things, each parent's ability to furnishand maintain a suitable and stable home environment for the child[ ], past performance,relative fitness, ability to guide and provide for the child[ ]'s overall well-being andwillingness to foster a positive relationship between the child[ ] and the other parent"(Matter of Palmatier v Carman, 125 AD3d at 1140 [internal quotation marks andcitations omitted]; see Matter ofLawrence v Kowatch, 119 AD3d 1004, 1005 [2014]; Matter of Paul A. v ShaundellLL., 117 AD3d 1346, 1348-1349 [2014], lv dismissed and denied 24NY3d 937 [2014]). In considering such factors, Family Court's factual findings andcredibility determinations are entitled to deference (see Matter of Joshua UU. v Martha VV., 118 AD3d 1051,1052 [2014]; Matter of Brown vBrown, 88 AD3d 1174, 1175 [2011]), particularly where, as here, Family Courtwas well acquainted with the parties. Applying these principles to the matter before us,we find that Family Court's determination, which largely continued the existing custodyarrangement while providing certain safeguards for the child, is supported by a soundand substantial basis in the record.
Initially, we have no quarrel with Family Court's decision to continue the award ofjoint legal custody. Despite the parties' apparently litigious history and differingperspectives on the child's need for counseling, nothing in the record suggests that their"relationship has deteriorated to the point where they are unable to maintain even amodicum of communication and cooperation for the sake of their child" (Matter of Dornburgh v Yearry,124 AD3d 949, 951 [2015] [internal quotation marks and citation omitted]). To thecontrary, the mother and the father have demonstrated both an ability to work in acooperative fashion consistent with the child's best interests and a willingness to fosterthe child's relationship with the other parent.
As to the continuation of the shared physical custody arrangement, the record revealsthat Family Court was presented with two fit and loving parents, each of whom workedfull time [*3]and, notably, resided in a household with anadult child from a prior relationship with mental health or behavioral issues. Althoughthe father's concerns for the child's safety in the mother's home were understandable,Family Court received extensive testimony from the mother, her wife and Ellen's mentalhealth professionals detailing Ellen's current medication and treatment plan, Ellen'sbehavior in the household since the June 2013 incident and the safety plan that wasinstituted following that event. According to both the mother and her wife, Ellen did notexperience any violent or delusional episodes after her medication was adjusted in July2013, and the record reflects that, as of the time of the hearing, Ellen was in compliancewith her treatment mandates. Additionally, Ellen's therapist did not view Ellen as posinga threat to the general public and specifically testified that Ellen "never made any kind ofthreatening comments or comments at all about the [child]." Under these circumstances,and granting due deference to Family Court's factual and credibility findings, we aresatisfied that its decision to continue shared physical custody of the child has a sound andsubstantial basis in the record and, overall, is in the child's best interests. Accordingly,the underlying order is affirmed.
McCarthy, J.P., Devine and Clark, JJ., concur. Ordered that the order is affirmed,without costs.