Opinion
153 CAF 18-02044
02-07-2020
In the Matter of Shane D. MCGEE, Petitioner–Respondent, v. Jennifer H. MCGEE, Respondent–Appellant.
BETH A. RATCHFORD, CANANDAIGUA, FOR RESPONDENT–APPELLANT. STEPHEN R. WARNER, SODUS, ATTORNEY FOR THE CHILD.
BETH A. RATCHFORD, CANANDAIGUA, FOR RESPONDENT–APPELLANT.
STEPHEN R. WARNER, SODUS, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., CURRAN, TROUTMAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent mother appeals from an order entered after a hearing that, inter alia, modified a prior custody order by awarding the parties joint custody of the subject child with physical custody to petitioner father. Contrary to the mother's contention, we conclude that Family Court properly determined that the father made the requisite showing of a change in circumstances to warrant an inquiry into whether the child's best interests would be served by modifying the existing custody arrangement (see Matter of Brewer v. Soles, 111 A.D.3d 1403, 1403, 975 N.Y.S.2d 299 [4th Dept. 2013] ). The evidence at the hearing established that, since entry of the prior custody order, which awarded the mother physical custody of the child, the child has had a significant decline in her school grades resulting in her failing three of her classes. In addition, she has had multiple instances of tardiness and unexcused absences from school while residing with the mother. Also since entry of the prior custody order, the child's anxiety and depression had significantly increased, in part as a result of living in the mother's home. Thus, the father established a change in circumstances sufficient to warrant an inquiry into the child's best interests (see Brewer, 111 A.D.3d at 1403, 975 N.Y.S.2d 299 ; see generally Matter of Little v. Little, 175 A.D.3d 1070, 1072, 108 N.Y.S.3d 630 [4th Dept. 2019] ).
We further conclude that, contrary to the mother's contention, there is a sound and substantial basis in the record to support the court's determination that it was in the child's best interests to award physical custody to the father (see Matter of Noble v. Gigon, 165 A.D.3d 1640, 1640–1641, 82 N.Y.S.3d 923 [4th Dept. 2018], lv denied 33 N.Y.3d 902, 2019 WL 1941819 [2019] ; Matter of Marino v. Marino, 90 A.D.3d 1694, 1695–1696, 935 N.Y.S.2d 818 [4th Dept. 2011] ). As noted above, while the mother had physical custody, the child performed poorly at school and experienced a significant increase in her anxiety and depression. Also, the mother works six nights a week and the child is alone at the mother's home during those times. The father, in contrast, is able to provide a more stable home for the child. Since the child has been living with the father pursuant to the temporary custody order, the child's school grades have risen significantly. The father has also provided the child with a tutor and transported her to summer school and a part-time job. While the father is at work, his wife is able to be with the child. Under the circumstances, and considering that "a court's determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record" ( Marino, 90 A.D.3d at 1695, 935 N.Y.S.2d 818 [internal quotation marks omitted] ), we perceive no basis upon which to set aside the court's determination. We have considered the mother's remaining contention and conclude that it does not require a different result.