Sue-Je F. v. Alan G.

166 A.D.3d 1360

88 N.Y.S.3d 608

In the Matter of SUE–JE F., Respondent,

v.ALAN G., Appellant.

526400

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

Calendar Date: October 15, 2018

Decided and Entered: November 21, 2018

Gordon, Tepper & DeCoursey LLP, Glenville (Jennifer P. Rutkey of counsel), for appellant.

Andrea J. Mooney, Ithaca, for respondent.

Susan B. McNeil, Ithaca, attorney for the child.

Before: McCarthy, J.P., Egan Jr., Devine, Clark and Aarons, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of a child (born in 2006). Following the birth of the child, the mother and the father briefly resided together in Bloomington, Indiana. In 2007, the mother and the father separated and, upon application in Indiana, the mother was granted sole legal and physical custody of the child and permitted to move, with the child, to Berkley, California to attend graduate school, with parenting time extended to the father. In 2008, the mother was offered a job in the City of Ithaca, Tompkins County and, upon further application in Indiana, the court permitted her to relocate with the child to Tompkins County, over the father's continued objections. In 2010, the mother was ultimately granted sole legal and physical custody of the child by an Indiana court, with a visitation schedule to accommodate the father's work/travel schedule. In January 2016, the mother filed, as relevant here, an amended petition in Tompkins County to modify the prior order of custody from Indiana.¹ Following a fact-finding hearing and Lincoln hearing, Family Court granted the mother's modification petition, modified the father's parenting time to every other weekend, set forth a parenting schedule providing for visitation during school holidays and summer vacation and awarded the mother certain counsel fees. The father now appeals.

It is well settled that "[a] parent seeking to modify an existing custody order first must demonstrate that a change in circumstances has occurred since the entry thereof that is sufficient to warrant the court undertaking a best interests analysis in the first instance; assuming this threshold requirement is met, the parent then must show that modification of the underlying order is necessary to ensure the child's continued best interests" ( Matter of Jason HH. v. Kylee II. , 162 A.D.3d 1144, 1145, 78 N.Y.S.3d 472 [2018] [internal quotation marks and citation omitted]; accord Matter of Tracey L. v. Corey M. , 151 A.D.3d 1209, 1210, 55 N.Y.S.3d 828 [2017] ). Here, the mother demonstrated that a change in circumstances has occurred since entry of the prior custody order that warrants an analysis of the best interests of the child. Notably, the child was only four years old when the prior custody order was entered and, since such time, the mother and the child have relocated to Tompkins County, where the child is now enrolled in school and is engaged in numerous extracurricular activities. The father has also relocated to Tompkins County and regularly exercises his parenting time and is involved in the child's education and activities.² Although the relationship between the mother and the father was acrimonious after entry of the prior order, the evidence at the fact-finding hearing demonstrated that the parents' ability to communicate has continued to deteriorate to the point where they can no longer effectively work together pursuant to the prior custody and visitation schedule for the betterment of the child (see generally Matter of Cameron ZZ. v. Ashton B. , 148 A.D.3d 1234, 1235, 48 N.Y.S.3d 809 [2017] ; Matter of Cid v. DiSanto , 122 A.D.3d 1094, 1096, 997 N.Y.S.2d 168 [2014] ). Notably, the father has frequently invoked law enforcement with respect to custodial exchanges, calling the police on one occasion after he and the mother had an apparent miscommunication as to the date of a particular exchange, and he has threatened the use of police intervention on various other occasions. A review of the parents' email exchanges demonstrates that the father routinely used hostile and antagonistic language when addressing the mother and, ultimately, made communication exceedingly more difficult by mandating that all direct communications from the mother to him were to be communicated solely through their respective legal counsel.³

Additionally, despite the mother having sole legal and physical custody of the child pursuant to the prior order, the father frequently usurped the mother's decision-making authority by making, or attempting to make, unilateral decisions with respect to, among other things, the child's health care and educational decisions in contravention of the prior order (see e.g. Matter of Horowitz v. Horowitz , 154 A.D.3d 1207, 1208, 62 N.Y.S.3d 229 [2017] ).⁴ Further, since entry of the prior order, the father subsequently married and had another child. The evidence at the fact-finding hearing revealed that the police were called to the father's residence on three separate occasions to investigate certain alleged domestic incidents between him and his wife.⁵ Although no arrests were made, at least two of these incidents occurred in the presence of the subject child, the most recent incident prompting the mother to commence the subject modification proceeding (see e.g. Matter of Fountain v. Fountain , 130 A.D.3d 1107, 1108, 12 N.Y.S.3d 641 [2015] ). Accordingly, given the parties' increasingly acrimonious relationship, their inability to effectively communicate, the father's failure to comply with certain provisions of the prior order and the indicated incidents of domestic violence that occurred in the child's presence, we find that there was ample evidence presented at the fact-finding hearing demonstrating a change in circumstances to warrant Family Court's analysis of the child's best interests (see Matter of Perry v. Leblanc , 158 A.D.3d 1025, 1027, 72 N.Y.S.3d 616 [2018] ; Matter of Cid v. DiSanto , 122 A.D.3d at 1096, 997 N.Y.S.2d 168 ).

When conducting an analysis as to the child's best interests, we must consider such relevant factors as "each parent's ability to furnish and maintain a suitable and stable home environment for the child, past performance, relative fitness, ability to guide and provide for the child's overall well-being and willingness to foster a positive relationship between the child and the other parent" ( Matter of Romero v. Guzman , 158 A.D.3d 997, 999, 73 N.Y.S.3d 255 [2018] [internal quotation marks and citations omitted], lv denied 31 N.Y.3d 908, 2018 WL 2728161 [2018] ). Here, there is no question that the mother and the father have each developed a loving relationship with the child and are both concerned with, and directly engaged in, providing for the child's educational and overall well-being and development. They are also both gainfully...