Calendar Date: November 20, 2017
Michelle I. Rosien, Philmont, for appellant.
Richard P. Urda, Ithaca, for respondent.
C. Chin, Ithaca, attorney for the child.
Before: McCarthy, J.P., Rose, Devine and Rumsey, JJ.
MEMORANDUM AND ORDER
from an order of the Family Court of Tompkins County
(Cassidy, J.), entered March 7, 2016, which granted
petitioner's application, in a proceeding pursuant to
Family Ct Act article 6, to modify a prior order of custody.
(hereinafter the father) and respondent (hereinafter the
mother) are the parents of a son (born in 2013). In November
2014, the parties agreed to an order of custody and
visitation for the child that awarded the mother sole legal
and primary physical custody and the father specified
parenting time. A few weeks into that arrangement, the mother
purportedly told the day-care provider for the child's
half sister, "I understand why people hurt or kill their
kids out of love. I would never do anything but maybe if I
can't have [the child] no one should."
day-care provider became worried and alerted the father to
the mother's statement, prompting the father to commence
this custody modification proceeding and obtain temporary
sole legal and physical custody of the child. Family Court
initially limited the mother to supervised visits with the
child but, as concerns about the child's safety abated,
granted her unsupervised visitation. Following an exhaustive
fact-finding hearing, Family Court issued a permanent order
awarding the father sole legal and physical custody and the
mother specified visitation. The mother now appeals.
the petitioning party, the father bore 'the burden of
demonstrating first, that there has been a change in
circumstances since the prior order and, then, if such a
change occurred, that the best interests of the child would
be served by a modification of that order'"
(Matter of Jessica AA. v Thomas BB., 151 A.D.3d
1231, 1231-1232 , quoting Matter of Thomas FF. v
Jennifer GG., 143 A.D.3d 1207, 1208 ; see
Matter of Quick v Glass, 151 A.D.3d 1318, 1319 ).
The mother underwent a psychological evaluation in the wake
of her troubling statement to the day-care provider that
resulted in a clinical psychologist making a "rule-out
diagnosis of adjustment disorder, " a "benign"
diagnosis that reflected an individual being overwhelmed by
events. The evaluating psychologist stressed, however, that
he could not make a definite diagnosis due to the fact that
the mother had tried to "fake good" on several of
the administered tests; as a result, he could not say with
certainty whether she did or did not have "a serious
mental health disorder." The mother's own counselor
had a favorable view of her mental state, but the
counselor's testimony also revealed an apparent lack of
candor from the mother in their counseling sessions.
Moreover, the parties' ability to communicate regarding
the child was bad to begin with but grew worse after the
entry of the November 2014 order. This deterioration was
reflected in the mother's acknowledgment that she did not
communicate with the father "at all" aside from
terse text message exchanges, as well as proof that these
exchanges left the father in the dark on issues such as a
doctor's appointment that the mother unilaterally
rescheduled. Family Court determined, and we agree, that
these developments constituted a change in circumstances
since the entry of the November 2014 order that warranted a
best interests analysis (see Matter of Dorsey v
De'Loache, 150 A.D.3d 1420, 1421-1422 ;
Matter of Garcia v Zinna, 149 A.D.3d 1185, 1185
; Matter of Paul A. v Shaundell LL., 117
A.D.3d 1346, 1348 , lv dismissed and denied 24
N.Y.3d 937 ; Matter of Fortner v Benson, 306
A.D.2d 577, 577-578 ).
interests analysis involves the review of factors such as
"each parent's relative fitness and past parenting
performance, the duration of the prior custody arrangement,
the child's wishes, the respective home environments,
including the existence of domestic violence, and the
likelihood of each parent to foster a relationship between
the child and the other parent" (Matter of Dorsey v
De'Loache, 150 A.D.3d at 1422 [internal quotation
marks and citation omitted]; accord Matter of Kevin F. v
Betty E., 154 A.D.3d 1118, 1120 ). The prior
custodial arrangement was not long-standing, and Family Court
noted that the home environments of both parents were
"at least minimally safe and appropriate for the
child." That being said, Family Court credited testimony
that the mother poisoned the once good relationship between
the father and the child's half sister, with one witness
describing how the mother said that the half sister had a
"right to know" that the father was "a
scumbag" and stated her intent to say much the same to
the child if she regained custody of him. There was therefore
proof to suggest that the mother had been and would likely
continue "engag[ing] in conduct designed to undermine
and interfere with the child['s] relationship with the
father, " which stood in marked contrast to the
father's willingness to overlook the mother's
hostility and afford her additional visitation with the child
on occasion (Matter of Greene v Robarge, 104 A.D.3d
1073, 1076 ; see Matter of Williams v Rolf,
144 A.D.3d 1409, 1413-1414 ).
acknowledge the advocacy of the attorney for the child for a
joint custodial arrangement, with the mother having physical
placement of the child. The foregoing proof nevertheless
shows the father to be far more prepared to facilitate a
relationship between the child and the noncustodial parent
and, according due deference to the credibility
determinations of Family Court, we find a sound and
substantial basis in the record for its conclusion that the
best interests of the child lie in awarding the father sole
custody (see Matter of Harlost v Carden,
124 A.D.3d 968, 968 ; Matter of Greene v
Robarge, 104 A.D.3d at 1077).
McCarthy, J.P., Rose and Rumsey, JJ., concur.
that the order is ...