Erick RR. v. Victoria SS.

206 A.D.3d 1523

170 N.Y.S.3d 708

In the Matter of ERICK RR., Appellant,

v.VICTORIA SS., Respondent.

533432

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

Calendar Date: May 24, 2022

Decided and Entered: June 30, 2022

Mack & Associates, PLLC, Albany (Barrett D. Mack of counsel), for appellant.

Pamela B. Bleiwas, Ithaca, attorney for the child.

Before: Lynch, J.P., Clark, Pritzker, Ceresia and McShan, JJ.

MEMORANDUM AND ORDER

McShan, J. Appeal from an order of the Family Court of Broome County (Rosa, J.), entered April 28, 2021, which partially dismissed petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody and visitation.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the unmarried parents of the subject child (born in 2017). The mother resides in New York and the father resides in North Carolina, where he relocated shortly after the child's birth. Pursuant to a September 2018 order entered on consent, the parties shared joint legal custody of the child with the mother having primary residential custody. The custody agreement permitted the father to petition to modify the custodial arrangement without showing a change in circumstances if, after four custodial periods in New York, the parties were unable to agree to custodial periods in North Carolina. After exercising his fourth custodial period, the father commenced this proceeding in September 2019 seeking to modify the September 2018 order by awarding him primary residential custody of the child or a liberal schedule of parenting time. Following a fact-finding hearing, Family Court, among other things, continued the parties’ joint legal custody arrangement, with the mother continuing to have primary residential custody of the child and the father receiving certain periods of parenting time during the child's school breaks, including two consecutive weeks in either July or August each year, and reasonable parenting time when the father visits New York. The father appeals.

Although a party seeking to modify a prior order of custody must generally first demonstrate a change in circumstances since that order (see Matter of Anthony JJ. v. Joanna KK., 182 A.D.3d 743, 744, 122 N.Y.S.3d 725 [2020] ; Matter of Thomas KK. v. Anne JJ., 176 A.D.3d 1354, 1355, 112 N.Y.S.3d 789 [2019] ), "[t]his requirement may ... be circumvented when the prior custody order provides that the satisfaction of certain conditions will constitute the necessary change in circumstances" ( Matter of Austin ZZ. v. Aimee A., 191 A.D.3d 1134, 1135, 142 N.Y.S.3d 122 [2021] ; see Matter of Anthony F. v. Christy G., 180 A.D.3d 1197, 1197–1198, 120 N.Y.S.3d 444 [2020] ). As the parties failed to come to an agreement pertaining to custodial periods in North Carolina, the condition in the September 2018 order was clearly satisfied (see Matter of Curtis D. v. Samantha E., 182 A.D.3d 655, 656, 122 N.Y.S.3d 703 [2020] ). Accordingly, the remaining issues before us are whether Family Court's determination to maintain the mother's residential custody and award certain parenting time to the father was in the best interests of the child (see Matter of David VV. v. Alison YY., 203 A.D.3d 1534, 1535, 165 N.Y.S.3d 627 [2022], lv denied 38 N.Y.3d 908 [June 14, 2022] ).

In determining what custodial arrangement would be in the best interests of the child, Family Court must necessarily consider several factors, including "the quality of the home environments of each parent, the need for stability in the child's life, the degree to which each parent has complied with the existing custodial arrangement and whether he or she will promote a positive relationship between the child and the other parent, as well as each parent's past performance and ability to provide for the child's physical, emotional and intellectual well-being" ( Matter of Charity K. v. Sultani L., 202 A.D.3d 1346, 1347, 164 N.Y.S.3d 250 [2022] ; see Matter of Jamie UU. v. Dametrius VV., 196 A.D.3d 759, 760–761, 151 N.Y.S.3d 221 [2021] ). Further, because "the practical effect of granting the father's request for modification of custody would be the relocation of the child, relocation must be considered" as part of the best interests analysis ( Matter of Jelani PP. v. Melissa QQ., 193 A.D.3d 1299, 1299–1300, 147 N.Y.S.3d 709 [2021] [internal quotations marks, brackets and citations omitted]; see Matter of Casarotti v. Casarotti, 107 A.D.3d 1336, 1340, 967 N.Y.S.2d 783 [2013], lv denied 22 N.Y.3d 852, 2013 WL 5614329 [2013] ). "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" ( Matter of Cecelia BB. v. Frank CC., 200 A.D.3d 1411, 1414, 161 N.Y.S.3d 366 [2021] [citations omitted]; see Matter of Devin W. v. Jessica X., 204 A.D.3d 1111, 1112, 166 N.Y.S.3d 62 [2022] ).

The evidence from the fact-finding hearing reveals that both parents love the child and are committed to promoting her best interests. Notwithstanding their desires to properly care for the child, the overarching concern that is apparent from the proceedings is the parties’ acrimonious relationship that extends back to the time of the mother's pregnancy. Indeed, the record demonstrates that the mother continues to harbor animosity toward the father for relocating shortly after the child's birth and the father is generally resentful of the mother and has resisted any input from her concerning how to parent the child. Further, the records of communication between the parties both before and after the child's birth evidence the hostility that they maintain toward one another. To this end, we join with Family Court in cautioning the parties to make efforts to improve their relationship for the sake of the child.

Nonetheless, despite the ongoing animosity that pervades their own relationship, the parties agreed that their recent communication had improved. Moreover, while the parties had several disagreements over parenting time, the mother had agreed to several visits in North Carolina and in New York and had also made efforts to facilitate regular video calls between the child and the father. Although communication between the parties has been difficult, the record contains sufficient evidence that the mother understood the importance of involving the father in the child's life.

Family Court also noted that the child has lived with the mother since birth and enjoys a strong bond with her. The mother has also been the sole provider for the child, with minimal financial support from the father. At the time of the hearing, the mother had stable housing and a strong support system in place for the child, which included the maternal grandmother and the child's maternal uncle, who both assisted in caring for the child while the mother worked. To this point, while the record reveals concerns about the mother's past living arrangements and a recent alcohol-related arrest, there was no evidence that the mother had provided inadequate care or that any harm had befallen the child, who...