Sandra R. v. Matthew R.

189 A.D.3d 1995

137 N.Y.S.3d 824

In the Matter of SANDRA R., Appellant,

v.MATTHEW R., Respondent.

(Proceeding No. 1.)

(And Another Related Proceeding.)

In the Matter of Sharon S., Respondent,

v.Matthew R., Respondent,andSandra R., Appellant.

(Proceeding No. 3.)

In the Matter of Matthew R., Respondent,

v.Sandra R., Appellant.

(Proceeding No. 4.)

528766

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

Calendar Date: November 24, 2020

Decided and Entered: December 31, 2020

Paul J. Connolly, Delmar, for appellant.

Matthew R., Galway, respondent pro se.

Veronica Reed, Schenectady, for Sharon S., respondent.

Vida L. McCarthy–Cerrito, Schenectady, attorney for the children.

Before: Lynch, J.P., Clark, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

Appeal from an order of the Family Court of Schenectady County (Blanchfield, J.), entered March 13, 2019, which, among other things, granted petitioner's application, in proceeding No. 4 pursuant to Family Ct Act article 6, to modify a prior order of custody and visitation.

Sandra R. (hereinafter the mother) and Matthew R. (hereinafter the father) are the parents of three daughters (born in 2002, 2005 and 2006). Pursuant to a 2012 judgment of divorce, the father was granted sole legal and primary physical custody of the children with alternate weekend/weekday parenting time to the mother. Thereafter, the mother sought to modify the custody and visitation provisions of the judgment of divorce. In September 2015, Family Court (Powers, J.) dismissed the mother's modification petition in its entirety, but ordered the mother to be allowed daily telephone contact with the children. In November 2016, the mother filed a petition for enforcement of the September 2015 order, alleging that the father was denying her daily telephone contact and that the father allowed his wife (hereinafter the stepmother) to yell at the children. Simultaneously, the mother also filed a modification petition, seeking joint¹ legal custody and primary placement of the children based on allegations that the father continued to refuse to communicate with her regarding the children's medical appointments and extracurricular activities. In September 2017, Sharon S., the children's maternal grandmother (hereinafter the grandmother), filed a petition seeking custody² of the children based upon allegations that the children were subjected to sexual advances and abuse by person(s) living in the father's home. In November 2017, Family Court awarded the grandmother temporary physical custody of the children. Although two of the children engaged in parenting time with each parent, the middle child remained in the care and physical custody of the grandmother throughout the hearing and exercised limited parenting time with the father. Also, in November 2017, the father filed a modification petition, alleging that the mother constantly placed the children's emotional and mental well-being at risk. As a result, the father sought to retain sole legal and primary physical custody of the children and for the mother's parenting time to be supervised.

Following a fact-finding hearing held on seven days between March 2018 and November 2018, as well as a Lincoln hearing with each child, Family Court, among other things, dismissed the mother's enforcement petition for failure to prove that the father willfully violated the prior order, dismissed the mother's modification petition, and partially granted the grandmother's custody petition by awarding her visitation with the children. The court also granted the father's modification petition by continuing sole legal and primary physical custody of the children with him and reducing the mother's parenting time and contact, all of which became supervised. The mother appeals.³

"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 Kanya J. v. Christopher K., 175 A.D.3d 760, 761, 108 N.Y.S.3d 474 [2019] [internal quotation marks, brackets and citations omitted], lvs denied 34 N.Y.3d 905, 906, 115 N.Y.S.3d 773, 772, 139 N.E.3d 394, 393 [2019]; see Matter of Kenda UU. v. Nicholas VV., 173 A.D.3d 1295, 1297, 103 N.Y.S.3d 613 [2019] ). "[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 Sue–Je F. v. Alan G., 166 A.D.3d 1360, 1361, 88 N.Y.S.3d 608 [2018] [internal quotation marks and citations omitted]; see Matter of Turner v. Turner, 166 A.D.3d 1339, 1339, 88 N.Y.S.3d 292 [2018] ). Factors to be considered in a best interests analysis include "the past performance and relative fitness of the parents, their willingness to foster a positive relationship between the child[ren] and the other parent, their fidelity to prior court orders and their ability to both provide a stable home environment and further the child[ren]'s overall well-being" ( Matter of Carrie ZZ. v. Aaron YY., 178 A.D.3d 1291, 1292, 116 N.Y.S.3d 737 [2019] ; see Matter of Clayton J. v. Kay–Lyne K., 185 A.D.3d 1243, 1244, 127 N.Y.S.3d 641 [2020] ). As relevant here, "Family Court may properly order supervised visitation if it finds that unsupervised visitation would be detrimental to the children's safety because the parent is either unable or unwilling to discharge his or her parental responsibility properly" ( Matter of Donald EE. v. Cheyenne EE., 177 A.D.3d 1112, 1115, 115 N.Y.S.3d 123 [2019] [internal quotation marks and citations omitted], lv denied 35 N.Y.3d 903, 125 N.Y.S.3d 57, 65, 148 N.E.3d 521, 529 [2020]; see Matter of Lynn X. v. Donald X., 162 A.D.3d 1276, 1277–1278, 79 N.Y.S.3d 328 [2018] ).

The mother contends that the dismissal of her modification petition, reducing her parenting time and requiring such time with the children to be supervised lacks a sound and substantial basis in the record. Initially, as the parties do not dispute that a change in circumstances occurred since the entry of the September 2015 order, our inquiry is directed to what arrangement is in the children's best interests.⁴ The mother testified that she is able to communicate with the children, rarely yells at them and has successfully completed mental health counseling and a coparenting class, making her better suited to be the custodial parent. The mother further testified that the father speaks ill of her, filed numerous unfounded Child Protective Services reports, does not take part in the children's lives, allows the stepmother to discipline the children, does not communicate with her, and fails to apprise her of the children's medical appointments and extracurricular activities. The father testified that he limits his communications with the mother because she degrades and insults him and tells the children about the conversations, and he is absent from some of the children's activities to avoid scenes that the mother has caused in the past. The father also testified that the mother cannot control her anger and berates the children, frequently yells at them for up to an hour, screams vulgarities at the children and insults both him and the stepmother, calling them obscene names, often in the presence of the children.

As part of these proceedings, the parties and children were ordered to undergo psychological evaluations by David Horenstein. The mother, the father and the children were evaluated by Horenstein in March 2010, August 2011 and October 2013. Horenstein testified that he initially diagnosed the mother with borderline personality disorder wherein, in times of conflict, she displays a pervasive pattern of excessive emotional reactivity and impulsivity and she cannot control and moderate her emotions, resulting in instability and inappropriate behavior. These characteristics of her personality disorder continue as it is deeply engrained and highly resistant to change. Hornstein further opined that while the father's behavior has been inappropriate at times, and he has occasionally made comments to the children that should not have been made, he has made a far greater effort to behave appropriately through the course of the last seven years than the mother. Hornstein recommended continuing sole legal custody to the father, with supervised parenting time to the mother.

The record reveals, as Family Court found, that the father provides a stable and relatively peaceful home for the children, whereas the mother rents a room and accesses the grandmother's residence to facilitate her parenting time. Moreover, Horenstein, the grandmother, and the father uniformly testified that the mother's tendency to yell, scream and berate the children creates turmoil and chaos in the children's day-to-day lives. The mother threatened to drive herself and the children into a tree and has threatened to cut off all contact between her and the children and all contact between the children and the father and the grandmother. These ongoing emotional explosions have negatively impacted all of the children, especially the middle child. Based upon the foregoing, and deferring to Family Court's factual and credibility determinations, there is a sound and substantial basis in the record to support Family Court's award of sole legal and primary physical custody to the father and reduced supervised parenting time to the mother (see Matter of Donald EE. v. Cheyenne EE., 177 A.D.3d at 1116, 115 N.Y.S.3d 123 ; Matter of Melissa MM. v. Melody NN., 169 A.D.3d 1280, 1283, 94 N.Y.S.3d 718 [2019] ).

The mother next contends that Family Court erred in awarding the grandmother visitation. In considering the grandmother's petition, Family Court was required to undertake a two-part inquiry. First, the court must find that the grandmother has standing to seek visitation (see Domestic Relations Law § 72...