Christopher TT. v. Lisa UU.

211 A.D.3d 1371

180 N.Y.S.3d 395

In the Matter of CHRISTOPHER TT., Appellant,

v.LISA UU., Respondent.

(And Another Related Proceeding.)

533924

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

Calendar Date: November 15, 2022

Decided and Entered: December 22, 2022

Robert C. Kilmer, Owego, for appellant.

Lauren S. Cohen, Johnson City, for respondent.

Joan E. Mencel, Endwell, attorney for the child.

Before: Aarons, J.P., Pritzker, Reynolds Fitzgerald, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Fisher, J. Appeal from an order of the Family Court of Broome County (M. Rita Connerton, J.), entered March 15, 2021, which, among other things, partially dismissed petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of one child (born in 2015). Both parties initially resided in Broome County, however, when the child was less than a year old, the father retired from his job and relocated approximately two hours away in Pennsylvania. Pursuant to a November 2017 order, the parties shared joint legal custody of the child with the child's primary residence being with the mother, and the father having visitation on alternate weekends and additional times as agreed upon by the parties.

In 2019, the father commenced a proceeding under Family Ct Act article 6 seeking to modify the prior order, alleging that the mother had committed a physical act of violence against him, had become increasingly hostile towards him and had interfered with his ability to communicate with the child. The father also moved for a temporary order prohibiting the mother's paramour from having contact with the child, which was granted by Family Court. After fact-finding hearings and a Lincoln hearing, Family Court, among other things, partially dismissed the petition by declining to modify the primary physical custody arrangement.¹ The father appeals.

"A parent seeking to modify a prior order of custody and visitation is required to demonstrate that a change in circumstances has occurred since entry thereof that then warrants the court engaging in an analysis as to the best interests of the child" ( Matter of Abigail Y. v. Jerry Z., 200 A.D.3d 1512, 1513, 161 N.Y.S.3d 439 [3d Dept. 2021] [internal quotation marks and citations omitted]). Since there is no dispute that a change in circumstances occurred following the issuance of the 2017 order, "[t]he question accordingly turns to what custodial arrangement is in the best interests of the child" ( Matter of Charity K. v. Sultani L., 202 A.D.3d 1346, 1347, 164 N.Y.S.3d 250 [3d Dept. 2022] ). "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 Cecelia BB. v. Frank CC., 200 A.D.3d 1411, 1414, 161 N.Y.S.3d 366 [3d Dept. 2021] [internal quotation marks and citations omitted]; see Matter of Charity K. v. Sultani L., 202 A.D.3d at 1347, 164 N.Y.S.3d 250 ). Where, as here, "the practical effect of granting the father's request for modification of custody would be relocation of the child, relocation must be considered within that framework" ( Matter of Daniel G. v. Marie H., 196 A.D.3d 801, 803, 151 N.Y.S.3d 475 [3d Dept. 2021] [internal quotation marks, brackets and citation omitted]; see Matter of Jelani PP. v. Melissa QQ., 193 A.D.3d 1299, 1302, 147 N.Y.S.3d 709 [3d Dept. 2021] ).

The father contends that Family Court's continuation of primary physical custody with the mother lacks a sound and substantial basis in the record. We disagree. Although the evidence produced at the fact-finding hearing confirmed the mother's physical act of violence and the increasing hostilities toward the father,² it is undisputed in the record that the mother has appropriately cared for the child. Numerous witnesses testified as to the mother's ability to provide for the child and her three other children from a prior marriage, none expressing any concern with the mother's ability to continue to do so. To that end, the child lives with her siblings and enjoys a close relationship with them, as well as her extended local family – who she sees regularly. Considering these relationships and the child's friends and school programming, which would be greatly impacted by a...