KAIRIS, GREGORY A. v. SMITH KAIRIS, BELINDA A. , 951 N.Y.S.2d 297 ( 2012 )


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  •          SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    950
    CAF 11-01877
    PRESENT: SCUDDER, P.J., CENTRA, SCONIERS, AND MARTOCHE, JJ.
    IN THE MATTER OF GREGORY A. KAIRIS,
    PETITIONER-RESPONDENT,
    V                             MEMORANDUM AND ORDER
    BELINDA A. SMITH KAIRIS, RESPONDENT-APPELLANT.
    D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF
    COUNSEL), FOR RESPONDENT-APPELLANT.
    FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
    COUNSEL), FOR PETITIONER-RESPONDENT.
    LISA A. GILELS, ATTORNEY FOR THE CHILD, SYRACUSE, FOR KIERRA A.K.
    Appeal from an order of the Family Court, Onondaga County (Gina
    M. Glover, R.), entered May 12, 2011 in a proceeding pursuant to
    Family Court Act article 6. The order, among other things, awarded
    petitioner sole legal custody of his daughter.
    It is hereby ORDERED that the order so appealed from is
    unanimously modified on the law by vacating ordering paragraphs one
    through six, granting primary physical custody to respondent, and
    granting those parts of the petition seeking joint legal custody and
    unsupervised visitation and as modified the order is affirmed without
    costs, and the matter is remitted to Family Court, Onondaga County, to
    fashion an unsupervised visitation schedule for petitioner in
    accordance with the following Memorandum: Respondent mother appeals
    from an order modifying the parties’ existing custody arrangement.
    Pursuant to the parties’ 2008 judgment of divorce, which incorporated
    their 2001 settlement agreement, the parties had joint legal custody
    of their child, with primary physical custody with the mother and
    unsupervised visitation with petitioner father. Based on an incident
    involving substance abuse by the father, however, Family Court
    modified that custody arrangement 15 months prior to the instant
    hearing by granting the mother sole legal and physical custody, with
    supervised visitation with the father. By the order on appeal, based
    on a petition brought by the father approximately four months after
    the court’s custody modification, the court again modified the custody
    arrangement, granting him sole legal and primary physical custody of
    the parties’ child and visitation with the mother. We note that, in
    awarding the father sole legal and primary physical custody of the
    child, the court granted the father relief that was not sought in the
    petition. Rather, the father sought, at most, “50/50 custody” and
    -2-                           950
    CAF 11-01877
    “50/50 unsupervised visit[ation],” which we construe as meaning joint
    legal and physical custody. We further note that, although the court
    failed “to set forth ‘the facts it deems essential’ and upon which its
    determination is based” (Matter of Whitaker v Murray, 50 AD3d 1185,
    1186, quoting CPLR 4213 [b]; see generally Family Ct Act § 165 [a]),
    remittal of the matter is not required inasmuch as the record is
    sufficient to allow for effective appellate review (cf. Matter of
    Bradbury v Monaghan, 77 AD3d 1424, 1425).
    We agree with the mother that the court erred in awarding sole
    legal and primary physical custody of the parties’ child to the
    father. Although we conclude that the father made a sufficient
    evidentiary showing of a change in circumstances to warrant an inquiry
    into whether the existing custody arrangement should be modified (see
    Matter of Hughes v Davis, 68 AD3d 1674, 1675), we nevertheless
    conclude that it is in the best interests of the child for the mother
    to retain primary physical custody (see generally Matter of Louise
    E.S. v W. Stephen S., 64 NY2d 946, 947). The record establishes that,
    throughout the child’s life, the mother has been the child’s primary
    caregiver (see Sitts v Sitts, 74 AD3d 1722, 1723, lv dismissed 15 NY3d
    833, lv denied 18 NY3d 801). There is no basis in the record to
    support the conclusion that the mother was unfit or less fit than the
    father, and “ ‘the relative fitness of the respective parents’ ” is a
    factor to consider in determining whether a change in physical custody
    is appropriate (Matter of Maher v Maher, 1 AD3d 987, 989). Evidence
    was presented that, at the time of the hearing, the mother and the
    child argue often and that the child desired to live with the father.
    However, there was evidence that the child relied on the mother when
    she was sick and that she did not rely on the father in the same way.
    Furthermore, as previously noted, the father was restricted to
    supervised visitation resulting from substance abuse (see Matter of
    Kristi L.T. v Andrew R.V., 48 AD3d 1202, 1205, lv denied 10 NY3d 716).
    While the father submitted evidence sufficient to show that he has
    been sober and has sought help for his substance abuse issues, the
    record does not support the drastic change from supervised visitation
    to sole legal and primary physical custody. We conclude, however,
    that it is in the best interests of the child to modify the existing
    custody arrangement by granting joint legal custody to the parties,
    with unsupervised visitation with the father. We therefore modify the
    order accordingly, and we remit the matter to Family Court to fashion
    an appropriate unsupervised visitation schedule for the father.
    We have examined the mother’s remaining contention, i.e., that
    she was deprived of the right to counsel, and conclude that it lacks
    merit.
    Entered:   September 28, 2012                   Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: CAF 11-01877

Citation Numbers: 98 A.D.3d 1281, 951 N.Y.S.2d 297

Filed Date: 9/28/2012

Precedential Status: Precedential

Modified Date: 11/2/2024