Matter of Angela N. v. Guy O. , 41 N.Y.S.3d 590 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 17, 2016 521795
____________________________________
In the Matter of ANGELA N.,
Respondent,
v
MEMORANDUM AND ORDER
GUY O.,
Appellant.
(And Two Other Related Proceedings.)
____________________________________
Calendar Date: October 14, 2016
Before: McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.
__________
Hug Law PLLC, Albany (Matthew C. Hug of counsel), for
appellant.
Alexandra G. Verrigni, Rexford, attorney for the children.
__________
Clark, J.
Appeal from an order of the Family Court of Saratoga County
(Hall, J.), entered October 2, 2015, which, among other things,
partially granted petitioner's application, in a proceeding
pursuant to Family Ct Act article 6, to modify a prior order of
custody and visitation.
Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the parents of a son and a daughter
(born in 1999 and 2001, respectively). By order entered on
February 3, 2014, upon consent, the parties had joint legal
custody of the daughter, the father had sole legal custody of the
son and primary physical custody of the children and the mother
had parenting time with the children every other weekend, one
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month during the summer, certain school breaks and holidays, and
such other parenting time as the parties could agree. Shortly
after entry of the custody order, in March 2014 and April 2014,
the mother and the father filed cross petitions each alleging
that the other had violated certain terms of the prior custody
order. During the proceedings on these petitions, Family Court
granted the mother's motion for permission to retain a forensic
evaluation at her own expense and ordered, among other things,
that the children, both parties and their respective spouses be
evaluated by a particular psychologist (see Family Ct Act § 251
[a]).
In December 2014, the mother filed a modification petition
alleging that there had been a change in circumstances warranting
modification of the prior order and seeking sole legal and
primary physical custody of the children. The father
subsequently retained his own psychologist to conduct an
independent forensic evaluation and to review the forensic
evaluation reports produced by the psychologist retained by the
mother.
Family Court conducted a Lincoln hearing, and, at the
subsequent hearing on the petitions, the mother presented the
testimony of the psychologist retained by the father and offered
into evidence the competing forensic evaluation reports. After
the mother rested, the father moved for dismissal of the mother's
petitions. Family Court granted the motion to the extent of
dismissing the mother's violation petition, but otherwise denied
the motion. The father called the mother as a witness and also
offered certain documents into evidence, including the daughter's
health records. Following completion of the hearing, Family
Court, in a bench decision, modified the prior order by awarding
the mother sole legal and primary physical custody of the
daughter, granting the father parenting time with the daughter
every third weekend of the month and certain other times and
altered the mother's parenting time with the son to the second
weekend of every month and other specified periods.1 From the
1
Family Court also dismissed the father's violation
petition.
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order entered thereon, the father appeals.2
The father argues that a sound and substantial basis did
not exist in the record to award the mother sole legal and
primary physical custody of the daughter. As an initial matter,
the father does not challenge Family Court's determination, which
was unaccompanied by specific findings, that there was a change
in circumstances warranting a review of the issue of custody to
ensure the continued best interests of the children. In any
event, inasmuch as the evidence demonstrated that there was an
ongoing process of alienation by all family members, as well as
bad behavior that affected the children's relationships with each
other and their parents and that the parents were unable to co-
parent effectively, we agree that the requisite change in
circumstances was shown (see Matter of Matthew K. v Beth K., 130
AD3d 1272, 1273 [2015]; Matter of Graham v Morrow, 111 AD3d 1178,
1179 [2013]; Matter of Hayward v Thurmond, 85 AD3d 1260, 1261-
1262 [2011]). This threshold showing having been made, we thus
turn to the question of whether it was in the daughter's best
interests to award the mother sole legal and primary physical
custody of her.
In determining what modification of an existing custody
order, if any, would best promote a child's interests, courts
consider, among other factors, the child's need for stability,
the parents' respective home environments, the length of the
existing custody arrangement, past parenting performances and
each parent's relative fitness, willingness to foster a positive
relationship with the other parent and ability to provide for the
child's intellectual and emotional development (see Matter of
Chris X. v Jeanette Y., 124 AD3d 1013, 1014 [2015]; Matter of
Clouse v Clouse, 110 AD3d 1181, 1183 [2013], lv denied 22 NY3d
858 [2014]; Matter of Hayward v Campbell, 104 AD3d 1000, 1001
[2013]). In addition, although "not an absolute, the stability
and companionship to be gained from keeping [siblings] together
2
Upon the father's motion, a Justice of this Court stayed
so much of the order as granted the mother sole legal and primary
physical custody of the daughter and put in place temporary
custody provisions pending determination of the appeal.
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is an important factor . . . to consider" (Eschbach v Eschbach,
56 NY2d 167, 173 [1982]; see Matter of Ebert v Ebert, 38 NY2d
700, 704 [1976]; Obey v Degling, 37 NY2d 768, 771 [1975]; Matter
of Valenti v Valenti, 57 AD3d 1131, 1135 [2008], lv denied 12
NY3d 703 [2009]). Furthermore, where, as here, a change in
custody also effectively results in a relocation of the child,
courts consider whether relocation is in the child's best
interests (see Matter of Casarotti v Casarotti, 107 AD3d 1336,
1340 n 2 [2013], lv denied 22 NY3d 852 [2013]; Matter of Zwack v
Kosier, 61 AD3d 1020, 1022-1023 [2009], lv denied 13 NY3d 702
[2009]).
Here, given the complete breakdown in the parties'
relationship, we find that a sound and substantial basis exists
in the record to support Family Court's determination that joint
legal custody of the daughter was no longer workable (see Matter
of Virginia C. v Donald C., 114 AD3d 1032, 1033 [2014]; Matter of
Festa v Dempsey, 110 AD3d 1162, 1163 [2013]). However, Family
Court's determination to award the mother sole legal and primary
physical custody of the daughter, while continuing the father's
sole legal and primary physical custody of the son, is not
supported by a sound and substantial basis in the record.
Preliminarily, the evidence did not demonstrate that it would be
in the children's best interests to have separate primary
residences. Neither of the psychologists recommended separation
of the siblings. In fact, the psychologist retained by the
father recommended against it, stating that awarding the mother
primary physical custody of only the daughter could result in the
son feeling "alienated and abandoned" by the mother and could
cause the daughter to act out in "dangerous" ways after being
uprooted from her routine and friends. She, however, did opine
that the children would benefit from having individualized and/or
separate parenting time with the mother so that she could focus
on repairing her relationship with each child.
In addition, the record reveals that, at the time of the
fact-finding hearing, the daughter had been recently discharged
from an outpatient treatment program for her increasing
depression, presentation of psychotic symptoms and history of
engaging in self-harm. The program records demonstrated that the
father and his spouse were actively involved and supportive of
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the daughter throughout the program, while the mother had minimal
involvement. Further, although Family Court found that either
parent would "secure the appropriate ongoing treatment" for the
daughter, the mother did not present any evidence, aside from her
brief testimony that she had researched medical providers, to
demonstrate that she had identified appropriate doctors to
address the daughter's particular mental health issues or that
the medical providers that she had researched, if appropriate,
accepted the daughter's health insurance and were accepting new
patients.
Moreover, Family Court's bench decision is completely
devoid of any discussion of the impact it would have on the
daughter to relocate from the father's residence in Saratoga
County to the mother's residence in Orange County, some 100 miles
away. The mother testified that the daughter had made friends in
the neighborhood where she lived, but that she did not have any
family in the immediate area. The mother also briefly stated
that she had researched nearby schools. Noticeably absent,
however, were any specific details regarding the schools that the
daughter could attend or whether the child's life would be
enhanced academically, emotionally or economically (see generally
Matter of Tropea v Tropea, 87 NY2d 727, 740-741 [1996]).
Considering the foregoing, giving particular weight to the
daughter's heightened need for stability, the potential for
damage caused by the relocation and our general preference for
keeping siblings together3 (see e.g. Matter of Hayward v
Thurmond, 85 AD3d at 1261; Matter of Robinson v Davis, 58 AD3d
1041, 1042 [2009]), we find that it is in the daughter's best
interests that the father have sole legal and primary physical
3
The children have an older half brother and a younger
half sister from the father's previous and current marriages. At
the time of the petition, the half brother and half sister
resided with the children in the father and stepmother's home.
By all accounts, the daughter had, for the most part, positive
relationships with her stepmother, half brother and half sister.
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custody of her.4 In light of our determination, we make several
adjustments to the mother's parenting time with each of the
children. The mother shall have parenting time with the daughter
on the third weekend of every month from Friday at 6:00 p.m.
until Sunday at 6:00 p.m.; during the five-day April break from
school each year; from July 20 through August 4 of each year; on
the Thanksgiving holiday in odd years, with the return of the
child occurring on the Sunday following Thanksgiving at 6:00
p.m.; and on the Christmas holiday in even years, with the return
of the child occurring on the Sunday following Christmas at 6:00
p.m. In addition, the mother shall have parenting time with the
son from August 5 through August 20 of each year. To the extent
not expressly altered herein, all other provisions of the October
2, 2015 Family Court order relating to the mother's parenting
time with the son shall remain in full force and effect.
McCarthy, J.P., Garry, Lynch and Devine, JJ., concur.
ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as awarded sole legal and
primary physical custody of the parties' daughter to petitioner;
respondent is awarded sole legal and primary physical custody of
the daughter and petitioner's parenting time is adjusted as set
forth in this Court's decision; and, as so modified, affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court
4
While not determinative, we note that the attorney for
the children does not support Family Court's determination to
relocate the daughter and separate the children.