Brett J. v. Julie K.

209 A.D.3d 1141

176 N.Y.S.3d 859

In the Matter of BRETT J., Appellant,

v.JULIE K., Respondent.

(Proceeding No. 1.)

In the Matter of Julie K., Respondent,

v.Brett J., Appellant.

(Proceeding No. 2.)

(And Two Other Related Proceedings.)

534013

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 9, 2022

Decided and Entered: October 20, 2022

Garufi Law, PC, Binghamton (Alena E. Van Tull of counsel), for appellant.

The Law Office of Kevin P. Flynn, Elmira (Kevin P. Flynn of counsel), for respondent.

Michelle E. Stone, Vestal, attorney for the children.

Before: Garry, P.J., Egan Jr., Lynch, Clark and Ceresia, JJ.

MEMORANDUM AND ORDER

Clark, J. Appeal from an order of the Family Court of Chemung County (Mary M. Tarantelli, J.), entered August 17, 2021, which, among other things, granted petitioner's application, in proceeding No. 2 pursuant to Family Ct Act article 6, to modify a prior order of custody.

Brett J. (hereinafter the father) and Julie K. (hereinafter the mother) are the divorced parents of two children (born in 2009 and 2013). Following a two-day fact-finding hearing in November 2020, Family Court dismissed the parties’ cross petitions to modify a May 2019 order of custody and parenting time. However, having found that its prior order was ambiguous, the court pronounced a new order aimed at clarifying the terms of the previous order. This order, which was reduced to writing and entered on November 6, 2020 (hereinafter the November 2020 order), granted the parties joint legal custody and crafted a parenting time schedule allotting equal time to each parent.

On November 19, 2020, the father commenced the first of these Family Ct Act article 6 proceedings alleging that the mother had hurt the younger child — a matter which was under investigation by Child Protective Services (hereinafter CPS) — and seeking emergency sole legal and physical custody of the children. Family Court declined to grant the father any emergency relief but placed the matter on the court's calendar. On November 20, 2020, the mother filed her own modification petition and an order to show cause seeking sole legal and primary physical custody of the children; the court likewise denied the mother emergency relief. On November 23, 2020, the mother filed an enforcement petition alleging that the father had refused to return the children for her parenting time and that he prevented the children from contacting her. The court, through a second order to show cause entered the same day, directed that the parties resume the parenting time schedule set out in the November 2020 order. On November 25, 2020, the mother filed a second enforcement petition alleging that the father was withholding her parenting time, and the court issued an amended order to show cause amending the November 2020 order by directing that the mother be required to have a supervisor present during her parenting time but otherwise directing the parties to follow the schedule as set out in the November 2020 order.

Following a fact-finding hearing, which was held in a hybrid format,¹ and a Lincoln hearing,² Family Court awarded the mother sole legal custody, gave the father access to the children's providers and records, continued the shared physical custody schedule contained in the November 2020 order and put numerous conditions in place, including preventing the father's fiance´e (hereinafter the fiance´e) — with whom the father shares a residence — from having unsupervised contact with the children, communicating with the children's school or providers and from accessing the children's records. Finding that the father had willfully violated the November 2020 order, the court imposed a 60–day jail sentence (suspended if the father complied with the terms of the order for one year) and granted the mother 30 days of make-up parenting time. The father appeals.

The parties do not dispute that there has been a change in circumstances and, in light of the allegations made against the mother and the deterioration in the parties’ communication, we agree. Therefore, we focus our inquiry on whether Family Court's custody and parenting time determinations serve the best interests of the children. "In determining the children's best interests, Family Court must consider, among other factors, the quality of the parents’ respective home environments, the need for stability in the children's lives, each parent's willingness to promote a positive relationship between the children and the other parent and each parent's past performance, relative fitness and ability to provide for the children's intellectual and emotional development and overall well-being" ( Matter of Benjamin V. v. Shantika W., 207 A.D.3d 1017, 1018, 172 N.Y.S.3d 529 [3d Dept. 2022] [internal quotation marks and citations omitted]; see Matter of Joshua PP. v. Danielle PP., 205 A.D.3d 1153, 1154–1155, 169 N.Y.S.3d 188 [3d Dept. 2022] ). Family Court's factual findings and credibility determinations are entitled to great deference, and "will not be disturbed if they have a sound and substantial basis in the record" ( Matter of Richard GG. v. M. Carolyn GG., 169 A.D.3d 1169, 1171, 94 N.Y.S.3d 644 [3d Dept. 2019] ).

The father and the attorney for the children contend that Family Court abused its discretion when it granted the mother sole legal custody of the children and continued the prior parenting time schedule, including keeping the mother's parenting time unsupervised. We disagree. Regarding legal custody, the record reveals that the parties’ relationship had become increasingly acrimonious. The parties’ electronic communications, which were admitted into evidence, show that the father frequently escalated minor disagreements into tirades against the mother, while the mother communicated in a more civilized fashion, choosing to disengage when appropriate rather than escalating disagreements. The record further shows that both the father and the fiance´e engaged in a pattern of undermining behavior against the mother – by directly disparaging her and implying to the children that they were not safe while under her care. Additionally, the father had routinely failed to provide the mother with timely notice regarding the children's appointments and other extracurriculars, such as the older child's first communion, leading to the mother's exclusion from important events in the children's lives. Thus, the parties cannot effectively engage in joint decision-making. Accordingly, we find that there is a sound and substantial basis in the record to support Family Court's determination that joint legal custody was no longer feasible and that the mother was the appropriate sole legal custodian (see Matter of Rutland v. O'Brien, 143 A.D.3d 1060, 1062–1063, 41 N.Y.S.3d 292 [3d Dept. 2016] ; Matter of Scialdo v. Kernan, 14 A.D.3d 813, 815, 788 N.Y.S.2d 473 [3d Dept. 2005] ; compare Matter of David JJ. v. Verna–Lee KK., 207 A.D.3d 841, 844, 170 N.Y.S.3d 742 [3d Dept. 2022] ).

Turning to physical custody, Family Court continued a structured parenting time schedule that allowed the parents to share parenting time equally. Both parties are loving parents that provide the children with an appropriate home and are involved in the children's schooling. Yet, both parents (and the fiance´e) have, at times, interrogated the children regarding the other household and made inappropriate comments about the other parent to the children. Although the mother has struggled with her mental health in the past, which caused the children some turmoil, she has been actively engaged in treatment and the court credited the two mental health professionals that testified they had no concerns regarding the mother's parenting ability. Under these circumstances, we find that there is a sound and substantial basis in the record to support a schedule of equally-shared parenting time (see Matter of Turner v. Turner, 166 A.D.3d 1339, 1340, 88 N.Y.S.3d 292 [3d Dept. 2018] ; Matter of Rutland v. O'Brien, 143 A.D.3d at 1062–1063, 41 N.Y.S.3d 292 ). In addition, Family Court's order takes steps to limit interaction between the parents during custodial exchanges, which may...