Misty PP. v. Charles PP.

206 A.D.3d 1532

170 N.Y.S.3d 383

In the Matter of MISTY PP., Respondent,

v.CHARLES PP., Appellant.

533676

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

Calendar Date: May 26, 2022

Decided and Entered: June 30, 2022

Lisa K. Miller, McGraw, for appellant.

CDH Law PLLC, Syracuse (Clifton C. Carden III of counsel), for respondent.

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

Before: Garry, P.J., Lynch, Aarons, Reynolds Fitzgerald and Ceresia, JJ.

MEMORANDUM AND ORDER

Aarons, J. Appeal from an order of the Family Court of Cortland County (Campbell, J.), entered May 25, 2021, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the divorced parents of two children (born in 2007 and 2009). A judgment of divorce incorporated the parties’ custody agreement wherein they shared joint legal custody of the children with the mother having primary physical custody and the father having parenting time. In 2020, the mother commenced this modification proceeding. Following fact-finding and Lincoln hearings, Family Court granted the petition and awarded the mother sole legal and physical custody of the children. The court also set forth a schedule of parenting time for the father that increased each year provided that the father exercised his allotted parenting time. The father appeals.

Regarding whether the mother met her threshold burden of proving a change in circumstances, Family Court found, and the record confirms, that the parties’ communication and relationship had deteriorated such that joint custody was no longer feasible. Indeed, as the court noted, the father reported the mother to law enforcement alleging that she had abused the children and subjected them to human trafficking. Yet, the father admitted that he had no evidence of abuse or human trafficking involving the children and that the only basis for these allegations was that the mother had sent him a passport application for the children. Accordingly, the requisite change in circumstances was established (see Matter of Kelly CC. v. Zaron BB., 191 A.D.3d 1101, 1103, 141 N.Y.S.3d 559 [2021] ; Matter of Nicole B. v. Franklin A., 185 A.D.3d 1166, 1167, 127 N.Y.S.3d 626 [2020] ).

As to the best interests of the children, Family Court found that the mother had been the primary caretaker of the children, that she had suitable housing for the children, that she scheduled and took the children to their medical appointments, that she encouraged a relationship between the children and the father, that she handled the logistics for the children's virtual schooling and that the children were progressing well in school. The court further noted that the mother was more involved in the children's lives than the father and also took into account the father's medical condition as potentially endangering the children (see Matter of Carnrike v. Kasson, 291 A.D.2d 680, 682, 737 N.Y.S.2d 432 [2002] ), as well as his baseless reports of abuse and human trafficking. Given that the court's findings are supported by a sound and substantial basis in the record, its determination to award sole legal and physical custody of the children to the mother will not be disturbed (see Matter of Mary AA. v. Lonnie BB., 204 A.D.3d 1355, 1357–1358, 167 N.Y.S.3d 230 [2022] ; Matter of Vickie F. v. Joseph G., 195 A.D.3d 1064, 1068–1069, 149 N.Y.S.3d 671 [2021] ; Matter of Daniel XX. v. Heather WW., 180 A.D.3d 1166, 1167–1168, 120 N.Y.S.3d 469 [2020] ; Matter of Holle v. Holle, 55 A.D.3d 991, 992, 865 N.Y.S.2d 393 [2008] ).¹

As to visitation, Family Court retains broad discretion in creating a parenting schedule that is consistent with the best interests of the children (see Matter of Kristen II. v. Benjamin JJ., 169 A.D.3d 1176, 1178, 94 N.Y.S.3d 664 [2019] ; Matter of Vicente X. v. Tiana Y., 154 A.D.3d 1113, 1115, 61...