Kelly CC. v. Zaron BB.

191 A.D.3d 1101

141 N.Y.S.3d 559

In the Matter of KELLY CC., Appellant,

v.ZARON BB., Respondent.

(Proceeding No. 1.)

(And Two Other Related Proceedings.)

In the Matter of Zaron BB., Respondent,

v.Kelly CC., Appellant.

(Proceeding No. 5.)

(And Another Related Proceeding.)

529354

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

Calendar Date: January 12, 2021

Decided and Entered: February 18, 2021

Ellen S. Ross, Johnstown, for appellant.

Casale Law Firm, PLLC, Gloversville (Anthony Casale of counsel), for respondent.

Rachel A. Rappazzo, Schenectady, attorney for the children.

Before: Garry, P.J., Egan Jr., Lynch, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Lynch, J.

Appeal from an order of the Family Court of Schoharie County (Hall, J.H.O.), entered June 3, 2019, which, among other things, granted petitioner's application, in proceeding No. 5 pursuant to Family Ct Act article 6, to modify a prior order of custody and visitation.

Zaron BB. (hereinafter the father) and Kelly CC. (hereinafter the mother) are the parents of two children (born in 2010 and 2014). A July 2017 consent order awarded the parties joint legal and physical custody of the children, with a directive to refrain from using corporal punishment against them. The July 2017 order did not designate a primary physical custodian, but it did set forth a schedule of substantial parenting time for the father during the week.

In May 2018, the mother filed a petition to modify the July 2017 order, requesting sole custody of the children and seeking to impose supervised visitation on the father upon allegations that he had used corporal punishment against the children and had engaged in domestic violence against his then-girlfriend (hereinafter the girlfriend) in their presence.¹ The mother filed another modification petition in June 2018 requesting the same relief upon essentially the same allegations. In support of her domestic violence allegation, the mother attached to her June 2018 petition a family offense petition that the girlfriend had filed against the father in May 2018 – which had since been dismissed for failure to prosecute – alleging that he had engaged in domestic violence against her in front of her children and that he was abusive to everyone in the household, including the subject children. The mother thereafter filed a violation petition against the father alleging that he had violated an order of protection issued in favor of the subject children. The father, in turn, filed a violation petition against the mother, alleging that she had refused to relinquish the children to his care on June 26, 2018 for his scheduled parenting time. He also filed a petition to modify the July 2017 custody order, seeking sole legal and physical custody of the children upon allegations that the mother was emotionally unstable and had "ma[d]e false allegations against [him]." Following a combined fact-finding hearing on the respective petitions, Family Court granted the father's modification petition and awarded him sole legal and primary physical custody of the children, with a schedule of parenting time for the mother.² The mother appeals.

"A parent seeking to modify an existing custody and parenting time order first must demonstrate that a change in circumstances has occurred since the entry thereof ... to warrant the court undertaking a best interests analysis" ( Matter of Sandra R. v. Matthew R., 189 A.D.3d 1995, 1996, ––– N.Y.S.3d –––– [2020] [internal quotation marks and citations omitted]; see Matter of Edwin Z. v. Courtney AA., 187 A.D.3d 1352, 1353, 134 N.Y.S.3d 472 [2020] ; Matter of Karen Q. v. Christina R., 184 A.D.3d 987, 989, 126 N.Y.S.3d 214 [2020] ). "[A]ssuming this threshold requirement is met, the parent then must show that modification of the underlying order is necessary to ensure the child[ren]'s continued best interests" ( Matter of Kimberly H. v. Daniel I., 185 A.D.3d 1170, 1171, 128 N.Y.S.3d 75 [2020] [internal quotation marks and citations omitted]; see Matter of Janeen MM. v. Jean–Philippe NN., 183 A.D.3d 1029, 1030, 123 N.Y.S.3d 746 [2020], lv dismissed 35 N.Y.3d 1079, 130 N.Y.S.3d 425, 154 N.E.3d 11 [2020] ). Factors relevant to that inquiry include "maintaining stability in the children's lives, the quality of respective home environments, the length of time the present custody arrangement has been in place, each parent's past performance, relative fitness and ability to provide for and guide the children's intellectual and emotional development, and the effect the award of custody to one parent would have on the children's relationship with the other parent" ( Matter of LaBaff v. Dennis, 160 A.D.3d 1096, 1097, 73 N.Y.S.3d 291 [2018] [internal quotation marks and citations omitted]; see Matter of Jennifer VV. v. Lawrence WW., 186 A.D.3d 946, 948, 130 N.Y.S.3d 121 [2020] ). Family Court's credibility assessments and factual findings "will not be disturbed as long as they have a sound and substantial basis in the record" ( Matter of Michael Q. v. Peggy Q., 179 A.D.3d 1329, 1331, 118 N.Y.S.3d 269 [2020] ; see Matter of Amanda I. v. Michael I., 185 A.D.3d 1252, 1254, 128 N.Y.S.3d 300 [2020] ).

Although Family Court made no express change in circumstances finding, we exercise our independent fact-finding authority to make that determination (see Matter of Kristen II. v. Benjamin JJ., 169 A.D.3d 1176, 1177, 94 N.Y.S.3d 664 [2019] ; Matter of Sweeney v. Daub–Stearns, 166 A.D.3d 1340, 1341, 88 N.Y.S.3d 634 [2018] ). It is abundantly clear from the record that the parties' ability to communicate has deteriorated to such an extent that they are unable to effectively and amicably coparent (see Matter of Cooper v. Williams, 161 A.D.3d 1235, 1237, 75 N.Y.S.3d 374 [2018] ; Matter of Claflin v. Giamporcaro, 75 A.D.3d 778, 779–780, 904 N.Y.S.2d 580 [2010], lv denied 15 N.Y.3d 710, 2010 WL 4008326 [2010] ). Indeed, each parent had resorted to surreptitiously recording the other during visitation exchanges and both confirmed that it was "impossible" to communicate. Accordingly, the joint custodial arrangement was no longer workable and a best interests analysis was warranted (see Matter of Ryan XX. v. Sarah YY., 175 A.D.3d 1623, 1624, 110 N.Y.S.3d 69 [2019] ; Matter of LaBaff v. Dennis, 160 A.D.3d at 1097, 73 N.Y.S.3d 291 ).

Turning to that analysis, we are mindful that the mother made serious allegations against the father. However, she failed to substantiate those allegations with sufficient proof. As to her claim that the father had used corporal punishment against the children, the mother entered into evidence a series of photographs she had taken depicting various bruises on the children's bodies and a cut on the son's lip. The vast majority of these photographs are undated and some of them were attached to emails that the mother had sent to representatives at Child Protective Services in October and November 2017 – an entire six months before the filing of her May 2018 modification petition. A few of the photographs contain handwritten notations stating that they were taken on June 22, 2018 and June 23, 2018 – after the father's parenting time – and appear to depict minor bruises on the son's hands. The father unequivocally denied using corporal punishment against the children or having caused these bruises, opining that they likely occurred from innocuous behavior such as the children falling outside. The mother acknowledged that her reports to the Central Register of Child Abuse and Maltreatment about the father's allegedly abusive conduct were all determined to be unfounded (see Matter of Martyna B. v. Marlo M., 185 A.D.3d 497, 497, 127 N.Y.S.3d 479 [2020] ; Mohen v. Mohen, 53 A.D.3d 471, 473–474, 862 N.Y.S.2d 75 [2008], lv denied 11 N.Y.3d 710, 872 N.Y.S.2d 72, 900 N.E.2d 555 [2008] ). In these circumstances, Family Court could reasonably credit the father's testimony on this issue, and its determination to do so is entitled to deference (see generally Matter of Michael Q. v. Peggy Q., 179 A.D.3d at 1331, 118 N.Y.S.3d 269 ).

As to the mother's allegation that the children had been exposed to domestic violence while in the father's care, the family offense petition filed by the girlfriend – who was no longer in a relationship with the father at the time of the fact-finding hearing – was dismissed for failure to prosecute and the temporary order of protection issued in connection therewith was vacated. The mother did not call the girlfriend to testify or indicate any attempt to secure her appearance, and the father confirmed that none of the orders of protection that had been issued against him were currently pending. The mother's hearing testimony on this issue was cursory and otherwise unsupported by independent evidence. Although Family Court is required to "consider the effect of domestic violence" when conducting its best interests analysis, it is obligated to do so only when such allegations "are proven by a preponderance of the evidence" ( Matter of Aimee T. v. Ryan U., 173 A.D.3d 1377, 1379, 105 N.Y.S.3d 558 [2019] [internal quotation marks and citations omitted]; see Domestic Relations Law § 240[1][a] ). On this record, we cannot conclude that Family Court erred in finding that the mother failed to prove her allegation of exposure to domestic violence by a preponderance of the evidence.

With respect to the issue of legal custody, the testimony adduced at the fact-finding hearing demonstrated that both parties were actively involved in the children's lives, including with respect to their education and medical care. The mother, however, has displayed poor judgment on certain occasions, including by allowing two acquaintances to move into her residence for a five-month period, whom she eventually had to forcibly evict due to addiction issues. The father also entered into evidence a series of audio recordings that he had made of the parties' exchanges, on which the mother can be heard screaming and cursing at the...