Opinion
2011-12-27
In the Matter of Diane DORSA, appellant, v. Andrew DORSA, respondent.
Ellen B. Holtzman, Nanuet, N.Y. (Meryl R. Neuren of counsel), for appellant. The Penichet Firm, P.C., White Plains, N.Y. (Jeanna M. Alberga of counsel), for respondent.
Ellen B. Holtzman, Nanuet, N.Y. (Meryl R. Neuren of counsel), for appellant. The Penichet Firm, P.C., White Plains, N.Y. (Jeanna M. Alberga of counsel), for respondent. Dana Forster–Navins, Irvington, N.Y., attorney for the children.PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ.
In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Westchester County (Spitz, J.H.O.), entered September 16, 2010, which, after a hearing, denied her petition to modify the custody provisions set forth in a stipulation of settlement dated May 30, 2001, which was incorporated but not merged into the parties' judgment of divorce entered July 11, 2001, so as to, inter alia, award her sole physical custody of the parties' children.
ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, the petition is granted, and the matter is remitted to the Family Court, Westchester County, for further proceedings to establish with all convenient speed an appropriate visitation schedule for the father.
“A modification of an existing custody arrangement should be allowed only upon a showing of a sufficient change in circumstances demonstrating a real need for a change of custody in order to insure the child's best interests” ( Matter of Nava v. Kinsler, 85 A.D.3d 1186, 1186, 926 N.Y.S.2d 310, lv. denied 17 N.Y.3d 714, 2011 WL 4977130; see Family Ct. Act § 652; Matter of Said v. Said, 61 A.D.3d 879, 880, 878 N.Y.S.2d 384; Matter of Manfredo v. Manfredo, 53 A.D.3d 498, 499, 861 N.Y.S.2d 399; cf. Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260). In determining the best interest of the children, courts must view the “ ‘totality of [the] circumstances' ” ( Matter of Gallo v. Gallo, 81 A.D.3d 826, 827, 916 N.Y.S.2d 800, quoting Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 96, 447 N.Y.S.2d 893, 432 N.E.2d 765). Moreover, “while not dispositive, the express wishes of older and more mature children can support the finding of a change in circumstances” ( Matter of Burch v. Willard, 57 A.D.3d 1272, 1273, 870 N.Y.S.2d 141).
Here, the Family Court determined that the mother failed to establish that there was a change in circumstances sufficient to require a change in custody and, therefore, denied her petition. We find, however, that under the particular circumstances of this case, including the strong preference of both children, who are now 13 and 15 years old, respectively, to reside with the mother ( see Matter of Nell v. Nell, 87 A.D.3d 541, 542, 928 N.Y.S.2d 312; cf. Matter of Englese v. Strauss, 83 A.D.3d 705, 706–707, 920 N.Y.S.2d 365), and the mother's greater sensitivity to the children's particular emotional and psychological needs, the mother has demonstrated a sufficient change in circumstances to warrant modification of the custody arrangement ( see Matter of Oddy v. Oddy, 296 A.D.2d 616, 617, 745 N.Y.S.2d 584). Consequently, the Family Court improvidently exercised its discretion in denying the mother's petition ( see Matter of Sparacio v. Fitzgerald, 73 A.D.3d 790, 791, 899 N.Y.S.2d 640). The case must be remitted, however, to the Family Court, Westchester County, to establish an appropriate visitation schedule for the father, who has played an important role in his children's lives ( see Mathie v. Mathie, 65 A.D.3d 527, 532, 884 N.Y.S.2d 433).