Cecelia BB. v. Frank CC.

200 A.D.3d 1411

161 N.Y.S.3d 366

In the Matter of CECELIA BB., Appellant,

v.FRANK CC., Respondent.

(Proceeding No. 1.)

In the Matter of Cecelia BB., Appellant,

v.Frank CC., Respondent.

(Proceeding No. 2.)

(And Four Other Related Proceedings.)

530508

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

Calendar Date: November 22, 2021

Decided and Entered: December 23, 2021

Noreen McCarthy, Keene Valley, for appellant.

Jeffrey E. McMorris, Glens Falls, for respondent.

Nicole R. Rodgers, Saratoga Springs, attorney for the child.

Elena J. Tastensen, Saratoga Springs, attorney for the child.

Before: Garry, P.J., Clark, Aarons, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Clark, J.

Appeal from an order of the Family Court of Washington County (Michelini, J.), entered September 12, 2019, which, among other things, dismissed petitioner's application, in proceeding No. 2 pursuant to Family Ct Act article 6, to modify a prior order of custody and visitation, and awarded sole custody of the subject children to respondent.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the divorced parents of two children (born in 2004 and 2001). The parties entered into a stipulation as to custody and visitation, which Family Court incorporated in its entirety into a May 2018 order. The court granted the parents joint legal custody of the children, with primary physical custody of the younger child to the mother and primary physical custody of the older child to the father. The father was also granted visitation with the younger child on alternate weekends, and the mother was directed to engage in family counseling with the older child, with the father to encourage the older child's participation therein. A set holiday schedule was also put into place.¹

In August 2018, the mother filed a family offense petition against the father in which she alleged that there had been a fight between her, the father and the father's girlfriend during a custodial exchange, which she video-recorded, and that certain threats had been directed at her.²

She also set forth allegations of domestic abuse that occurred during the parties’ marriage and certain inappropriate conduct on behalf of the father and the girlfriend that had occurred in the children's presence. Later that same month, the mother filed a petition to modify the May 2018 order, alleging that the younger child no longer wished to visit the father because of fighting that occurred between the father and the girlfriend and that the older child was not attending school. The mother requested that the younger child's visits with the father be supervised, that the father's girlfriend be directed not to have contact with the younger child and that she be granted "full physical custody" of the older child. The father in turn filed a petition to enforce the May 2018 order, alleging that he was being denied visitation with the younger child. The mother filed her own violation petition shortly thereafter based upon the father's alleged failure to bring the older child to the court-ordered counseling and provide him with adequate medical and educational care.

In November 2018, the father filed a family offense petition regarding an incident reported to him by the younger child during which the mother took the younger child's cell phone and a physical altercation ensued. The younger child left the mother's residence after the incident and went to the father's house, where he remained for several days. Child Protective Services (hereinafter CPS) and local law enforcement were also made aware of the incident and, after investigation, determined that there was no reason why the younger child should not be returned to the mother. The mother demanded as much, but the father obtained a limited temporary order of protection against her in favor of the younger child, in effect until May 2019, and the father was awarded temporary sole legal and physical custody of the younger child. The mother responded by filing the final petition at issue here, also in November 2018, alleging that the father had violated the May 2018 order by filing a false report with CPS and failing to return the younger child to her custody. Following a fact-finding hearing on all six petitions and a Lincoln hearing at which both children were present, Family Court ordered, in pertinent part, that the father was to have sole legal and physical custody of both children and that the mother would have visitation with the children as she and the children were able to agree. The mother appeals.³

A parent seeking to modify an existing order of custody and visitation bears the burden of demonstrating that there has been a change in circumstances since entry of the prior order (see Matter of Zachary C. v. Janaye D., 199 A.D.3d 1267, 1268, 159 N.Y.S.3d 175 ; Matter of Paul Y. v. Patricia Z., 190 A.D.3d 1038, 1040, 137 N.Y.S.3d 836 [2021] ), which may be established by evidence "that the relationship between the parents has deteriorated to the point where they simply cannot work together in a cooperative fashion for the good of their children" ( Matter of Charles AA. v. Annie BB., 157 A.D.3d 1037, 1038, 68 N.Y.S.3d 581 [2018] [internal quotation marks and citations omitted]; see Matter of Sabrina B. v. Jeffrey B., 179 A.D.3d 1339, 1340, 118 N.Y.S.3d 257 [2020] ). Here, although the parties were able to stipulate to the prior custody arrangement notwithstanding a certain degree of animosity between them, hostility overtook their co-parenting relationship thereafter, and the evidence at the fact-finding hearing made clear that the children had been swept into that chaos, particularly during custodial exchanges. The mother had resorted to filming her interactions with the father, which she indicated was out of fear for her safety given past violence between them, but that filming captured inappropriate conduct attributable to both parties. The father's girlfriend was able to act as an intermediary between the parties to some extent previously, but that method also eventually unraveled. We therefore agree with Family Court that the parties are no longer able to engage in the cooperative, civil communication necessary to make parenting decisions jointly, a change in circumstances that in turn warrants inquiry into the continued best interests of the younger child (see Matter of Quick v. Glass, 151 A.D.3d 1318, 1319–1320, 56 N.Y.S.3d 657 [2017] ; Matter of Kylene FF. v. Thomas EE., 137 A.D.3d 1488, 1489–1490, 28 N.Y.S.3d 728 [2016] ; Matter of Schlegel v. Kropf, 132 A.D.3d 1181, 1182, 18 N.Y.S.3d 480 [2015] ; Matter of Deyo v. Bagnato, 107 A.D.3d 1317, 1318–1319, 968 N.Y.S.2d 229 [2013], lv denied 22 N.Y.3d 851, 2013 WL 5567914 [2013] ).

As to best interests, pertinent factors include "the quality of each parent's home environment, the need for stability in the child's life, the parents’ past performance, the willingness of each parent to foster a positive relationship between the child and the other parent and the ability to provide for the child's intellectual and emotional development and overall well-being" ( Matter of Jamie UU. v. Dametrius VV., 196 A.D.3d 759, 760–761, 151 N.Y.S.3d 221 [2021] ; see Matter of Daniel XX. v. Heather WW., 180 A.D.3d 1166, 1167, 120 N.Y.S.3d 469 [2020] ). As Family Court was in a superior position to observe and assess witness testimony and demeanor during the fact-finding hearing, its credibility assessments and factual findings are accorded great deference, and its custodial determination will not be disturbed so long as it is supported by a sound and substantial basis in the record (see Matter of Celinda JJ. v. Adrian JJ., 198 A.D.3d 1203, 1204, 157 N.Y.S.3d 144 [2021] ; Matter of Tiffany W. v. James X., 196 A.D.3d 787, 792, 151 N.Y.S.3d 225 [2021] ).

The evidence from the fact-finding hearing demonstrates that the mother was very engaged in the younger child's life while he was in her custody. She supervised his academics, an area in which he then excelled, attended his many sporting events, arranged family counseling and other therapeutic opportunities for him and facilitated his participation therein, and she demonstrated appropriate parental concern over issues faced by teenagers, such as exposure to drug use. However, the record also supports Family Court's observation that the mother was unwilling to see her part in the deterioration of her relationship with both the father and the children, which was readily apparent in her own video footage, for example. The November 2018 incident also played a significant role in that deterioration. The mother and the younger child, in reports to the father and the police, provided differing accounts as to the catalyst and intensity of that incident, and the extent of the mother's physical conduct during the altercation. Irrespective of whether the mother's actions were permissible discipline, as she maintains, or a disproportionate reaction to teenage behavior taken out of anger and frustration, it is clear that the incident deeply affected the younger child, who refused to have any contact with the mother from that point onward. Although CPS opened an investigation into the incident and quickly determined that the allegations of physical abuse were unfounded, and police determined that there was no reason that the younger child should not return home, the mother took no responsibility whatsoever for the incident, largely blaming the child for his reactions to her.

The father's parenting was properly characterized by Family Court as lackadaisical. There is a considerable amount of evidence that he neglected, among other responsibilities, his obligation to ensure that the younger child's educational needs were met. It is not disputed that the younger child's academic performance markedly declined in the period preceding the hearing, including while in the father's custody. Notwithstanding the father's impression at the time of...