Carla UU. v. Cameron UU.

212 N.Y.S.3d 234

227 A.D.3d 1257

In the Matter of CARLA UU., Appellant,

v.CAMERON UU., Respondent. (Proceeding No. 1.)

In the Matter of Cameron UU., Respondent,

v.Carla UU., Appellant. (Proceeding No. 2.)

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

Calendar Date: March 25, 2024

Decided and Entered: May 16, 2024

Todd G. Monahan, Schenectady, for appellant.

Theresa M. Suozzi, Saratoga Springs, for respondent.

Vicki J. Prager, Northville, attorney for the children.

Before: Egan Jr., J.P., Lynch, Reynolds Fitzgerald, Ceresia and Powers, JJ.

MEMORANDUM AND ORDER

Powers, J.

Appeal from an order of the Family County of Montgomery County (Michael G. Dayian, J.), entered August 11, 2023, which, among other things, partially granted petitioner’s application, in proceeding No. 2 pursuant to Family Ct Act article 6, to modify a prior order of custody.

Cameron UU. (hereinafter the father) and Carla UU. (hereinafter the mother) are the parents of three children, a son (born in 2009 [hereinafter the oldest child]) and two daughters (born in 2016 and 2018 [hereinafter the younger children]). The mother and the father entered into a separation agreement in June 2019, which was later modified by a November 2019 addendum, pursuant to which the parties agreed to share joint legal custody of the children with the mother having primary physical custody and the father having certain parenting time. Pursuant to the terms of the addendum, the parties also agreed "not to move more than 50 miles away from their current residence with[out] the consent of the court or express written consent of the other parent." In March 2020, Supreme Court (Tomlinson, J.) issued a final judgment of divorce which merged this agreement and the addendum.

In May 2022, the mother filed a petition for modification seeking, among other things, sole legal custody of the children. Then, in August 2022, the father filed a petition for modification alleging that the mother had moved to a new home located further than the agreed-upon 50 miles with the intention to enroll the children in a new school. As a result, the father sought primary physical custody of the children. Following fact-finding and Lincoln hearings, Family Court dismissed the mother’s petition finding that she had failed to establish that there had been a breakdown in the parties’ communication which left them unable to effectively coparent. As to the father’s petition, the court found that the mother’s relocation constituted a change in circumstances and that it was in the best interests of the oldest child to grant the father primary physical custody allowing the oldest child to continue to attend his former school. As to the younger children, the court found that "there [was] no compelling reason to modify their current[ ] custodial arrangement," thereby resulting in a separation of the oldest child from the younger children. Family Court granted the father’s petition to this extent and set a schedule of parenting time that allows all three children to have parenting time together. The mother appeals.

We affirm. As an initial matter, neither party disputes the existence of a change in circumstances since the March 2020 judgment of divorce settling custody (see Matter of David V. v. Roseline W., 217 A.D.3d 1112, 1113, 191 N.Y.S.3d 504 [3d Dept. 2023], lv denied 40 N.Y.3d 905, 2023 WL 6885682 [2023]; Matter of Michael NN. v. Robert OO., 210 A.D.3d 1326, 1326, 179 N.Y.S.3d 411 [3d Dept. 2022], lv denied 39 N.Y.3d 910, 2023 WL 3011648 [2023]), and our review of the record confirms Family Court’s determination in this respect. Specifically, the increase in the father’s travel time resulting from the mother’s move (see Matter of Shayne FF. v. Julie GG., 221 A.D.3d 1202, 1204, 200 N.Y.S.3d 163 [3d Dept. 2023]), as well as the mother’s unilateral decision to enroll the children in the Shenendehowa School District, established the requisite change in circumstances (see Matter of David BB. v. Danielle CC., 216 A.D.3d 1281, 1283, 188 N.Y.S.3d 790 [3d Dept. 2023]; Matter of Mathena XX. v. Brandon YY., 189 A.D.3d 1733, 1734–1735, 136 N.Y.S.3d 542 [3d Dept. 2020]; Matter of Turner v. Turner, 166 A.D.3d 1339, 1339, 88 N.Y.S.3d 292 [3d Dept. 2018]).¹ Thus, the only issue before this Court is whether Family Court’s order serves the best interests of the oldest child.

[1, 2] "In making a best interests determination, Family Court must consider a variety of factors, including the quality of the parents’ respective home environments, the need for stability in the child’s life, each parent’s willingness to promote a positive relationship between the child and the other parent and each parent’s past performance, relative fitness and ability to provide for the child’s intellectual and emotional development and overall wellbeing" (Matter of Jehrica K. v. Erin J., 223 A.D.3d 1079, 1081, 203 N.Y.S.3d 441 [3d Dept. 2024] [internal quotation marks and citations omitted]; see Matter of Warda, NN. v. Muhammad OO., 217 A.D.3d 1086, 1087–1088, 190 N.Y.S.3d 196 [3d Dept. 2023]). "This Court accords great deference to Family Court’s factual findings and credibility determinations, and will not disturb its custodial determination if supported by a sound and substantial basis in the record" (Matter of David. V. v. Roseline W., 217 A.D.3d at 1113, 191 N.Y.S.3d 504 [internal quotation marks, ellipsis and citations omitted]; see Matter of Giuseppe V. v. Tiffany U., 224 A.D.3d 1122, 1124, 205 N.Y.S.3d 776 [3d Dept. 2024]; Matter of Jahleel SS. v. Chanel TT., 201 A.D.3d 1172, 1174, 162 N.Y.S.3d 176 [3d Dept. 2022]).

[3–5] We reject the mother’s contention that Family Court erred in determining that joint legal custody remained feasible. "Generally, joint legal custody is the preferred arrangement, unless the evidence demonstrates that the parties are unable to work together and communicate cooperatively" (Matter of Chad KK. v. Jennifer LL., 219 A.D.3d 1581, 1583, 196 N.Y.S.3d 202 [3d Dept. 2023] [internal quotation marks and citations omitted]). "The fact that there are some disagreements will not necessarily render joint custody improper where the parents’ relationship is not so acrimonious as to render the joint custody award unworkable" (Matter of Joseph L. v. Heather K., 214 A.D.3d 1041, 1043, 184 N.Y.S.3d 467 [3d Dept. 2023] [internal quotation marks, brackets and citations omitted]). The record demonstrates that the mother and the father had disagreements on occasion and the father sometimes spoke to the mother in a negative manner. However, they remain fit and loving parents who are able to constructively communicate regarding the children. Thus, there is a sound and substantial basis in the record to find that joint legal custody is still feasible under the circumstances presented here (see Matter of Chad KK. v. Jennifer LL., 219 A.D.3d at 1583–1584, 196 N.Y.S.3d 202; compare Matter of John M. v. Tashina N., 218 A.D.3d 935, 937, 193 N.Y.S.3d 402 [3d Dept. 2023]; Matter of Joshua. XX. v. Stefania. YY., 218 A.D.3d 893, 896, 193 N.Y.S.3d 367 [3d Dept. 2023]).

[6–8] We find no basis upon which to disturb Family Court’s finding that granting the father primary physical custody of the oldest child was in that child’s best interests, despite this resulting in the oldest child’s separation from the younger children. "Although … sibling relationships should not be disrupted unless there is some overwhelming need to do so, this rule is not absolute and may be overcome where … the best interests of each child lie with a different parent" (Matter of Curry v. Reese, 145 A.D.3d 1475, 1476, 44 N.Y.S.3d 279 [4th Dept. 2016] [internal quotation marks, brackets and citations omitted]; accord Matter of Alexis X. [Tara Y.], 222 A.D.3d 1213, 1215, 202 N.Y.S.3d 487 [3d Dept. 2023]; see Eschbach v. Eschbach, 56 N.Y.2d 167, 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982]). In this respect, while the mother has served as the primary caregiver for the children, both parents are fit, have stable home environments and are able to provide for the oldest child seemingly equally. However, the record reflects that following the oldest child’s enrollment in the Shenende- howa School District, his grades dropped,...