] Matter of Jacob R. v. Nadine Q. , 34 N.Y.S.3d 729 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 7, 2016 521350
521296
________________________________
In the Matter of JACOB R.,
Respondent,
v
NADINE Q.,
Appellant.
(Proceeding No. 1.)
________________________________ MEMORANDUM AND ORDER
In the Matter of NADINE Q.,
Appellant,
v
JACOB R.,
Respondent.
(Proceeding No. 2.)
(And Other Related Proceedings.)
________________________________
Calendar Date: May 25, 2016
Before: Peters, P.J., McCarthy, Egan Jr., Lynch and Devine, JJ.
__________
Lisa A. Natoli, Norwich, for appellant.
Carol Malz, Oneonta, for respondent.
Jehed Diamond, Delhi, attorney for the child.
__________
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521296
Lynch, J.
Appeals (1) from an order of the Family Court of Broome
County (Connerton, J.), entered June 23, 2015, which, among other
things, granted petitioner's application, in proceeding No. 1
pursuant to Family Ct Act article 6, to modify a prior order of
custody, and (2) from an order of said court, entered May 15,
2015, which, among other things, dismissed petitioner's
application, in proceeding No. 2 pursuant to Family Ct Act
article 6, to find respondent in willful violation of a prior
order of visitation.
Jacob R. (hereinafter the father) and Nadine Q.
(hereinafter the mother) are the parents of a daughter (born in
2006). By order dated June 5, 2013, Family Court continued an
award of joint legal custody, with primary physical custody
granted to the father. The mother was accorded parenting time
from noon on Sunday until 8:00 a.m on Wednesday. Each parent
maintained a separate household. The father resided with the
child, his longtime girlfriend and a younger child that the
father and girlfriend had together. The mother resided with her
longtime boyfriend and a younger child from their relationship.
The proceedings at issue herein were prompted by the events
of November 8, 2014, a Saturday. After the child had been sent
to her room for acting out, she apologized and presented a
sexually explicit "stick-figure" drawing of a tall and a small
person to the father's girlfriend. When the father returned
home, he contacted the police, who came to the home that evening.
On Monday morning November 10, 2014, the father commenced a
proceeding seeking to modify custody due to the arrest of the
mother's boyfriend on felony sex abuse charges. Family Court
issued a temporary order awarding exclusive custody to the
father, with supervised visitation as the parents could agree,
ordered a child protective investigation pursuant to Family Ct
Act § 1034, and issued an order of protection for the child
against the mother's boyfriend. Later that month, the mother
moved in with the boyfriend's parents, who indicated that the
child would not be allowed in their home.
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521296
In December 2014, the mother filed a petition for
"temporary sole custody." After a series of violation petitions
were filed by both parties, Family Court issued a further
temporary order in March 2015, providing for specific visitation
supervised by the father's parents. By order entered May 15,
2015, Family Court dismissed the various violation petitions, but
specified that proof as to compliance would be allowed at the
fact-finding hearing. After a three-day hearing, Family Court
issued an order entered on June 23, 2015, which, among other
things, granted the father's modification petition. The mother's
visitation was reduced to alternate weekends from Friday at 5:30
p.m. to Sunday at 5:00 p.m., with the overnight portion at the
home of the paternal grandparents. The mother appeals from both
the May and June 2015 orders.
We affirm. A parent seeking to modify an existing custody
order must "demonstrate[] a change in circumstances that warrants
an inquiry into the best interests of the child" (Matter of
Schlegel v Kropf, 132 AD3d 1181, 1182 [2015]). Although Family
Court did not expressly find a change in circumstances, the court
did find that the father established that the boyfriend had been
"indicated" for sexual abuse by the Broome County Department of
Social Services and further noted that the mother was financially
unable to secure her own residence. Given our independent
authority to review the record (see Matter of Rohde v Rohde, 135
AD3d 1011, 1012-1013 [2016]), we conclude that the indicated
report concerning sexual abuse of the child in the mother's
household and the arrest of the mother's boyfriend constituted a
change in circumstances compelling an inquiry into the best
interests of the child (see Matter of Christopher B. v Patricia
B., 75 AD3d 871, 872 [2010]; Matter of Laurie II. v Raymond JJ.,
68 AD3d 1170, 1171 [2009]). This is all the more so given the
testimony of the father, his girlfriend and another family friend
who described negative changes in the child's behavior, including
physical manifestations of anxiety, on Sunday mornings during
2014, just prior to starting visitation with the mother (see
Matter of Terry I. v Barbara H., 69 AD3d 1146, 1147-1148 [2010];
Matter of Kowatch v Johnson, 68 AD3d 1493, 1494 [2009], lv denied
14 NY3d 704 [2010]). Moreover, Family Court duly accounted for
the abrupt change in the mother's living arrangements (see Matter
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521296
of Christopher T. v Jessica U., 90 AD3d 1092, 1093-1094 [2011]).
Under the circumstances presented, and the court having conducted
a Lincoln hearing, we further find that the court's determination
limiting visitation was in the child's best interests.
Finally, Family Court has "broad discretion in establishing
the parameters of the proof at trial" (Matter of Gardner v
Gardner, 69 AD3d 1243, 1244 [2010]), and we perceive no error in
Family Court's dismissal of the interim violation petitions or in
limiting the proof relative to the mother's modification petition
which, by its terms, pertained to temporary custody (see Matter
of Wilson v Hendrickson, 88 AD3d 1092, 1093 [2011]).
Peters, P.J., McCarthy, Egan Jr. and Devine, JJ., concur.
ORDERED that the orders are affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court