Summary
In Parchinsky v. Parchinsky, 114 AD3d 1040 (3rd Dept.2014), 13 and 15–year–old sons expressed a “strong and openly-expressed preference” to reside with their father.
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2014-02-20
In the Matter of Robert J. PARCHINSKY, Respondent, v. Joann PARCHINSKY, Appellant.
Ellen H. Fried, Cornwallville, for appellant. Sanford N. Finkle, Troy, for respondent.
Ellen H. Fried, Cornwallville, for appellant. Sanford N. Finkle, Troy, for respondent.
Robin DePuy Shanley, Palenville, attorney for the children.
Before: PETERS, P.J., LAHTINEN, GARRY and ROSE, JJ.
GARRY, J.
Appeal from an order of the Family Court of Greene County (Tailleur, J.), entered August 31, 2012, which granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 6, for modification of a prior order of custody.
Pursuant to a 2003 separation agreement that was later incorporated into a judgment of divorce, petitioner (hereinafter the father) and respondent (hereinafter the mother) had joint legal custody of the parties' two sons (born in 1996 and 1998) and the mother had primary physical custody. In March 2012, the father commenced this modification proceeding seeking primary physical custody. Following a fact-finding hearing and a Lincoln hearing, Family Court granted the petition. The mother appeals.
Modification of an existing custody arrangement must be predicated upon a showing of changed circumstances that require alteration to ensure the best interests of a child ( see Matter of Hamilton v. Anderson, 99 A.D.3d 1077, 1078, 952 N.Y.S.2d 788 [2012];Matter of Grant v. Grant, 47 A.D.3d 1027, 1028, 849 N.Y.S.2d 341 [2008] ). We agree with Family Court that the father met this burden. The father testified that the mother failed to inform him immediately when the older son was diagnosed with cancer in October 2011, did not advise the father that surgical treatment was required until after the surgery occurred, and refused to sign authorizations permitting the father to speak with the son's doctors until the father commenced a court proceeding to compel her to do so. He further testified that the mother interfered with his relationship with the sons by, among other things, limiting their ability to communicate with him on the Internet, listening in on their telephone conversations with him, and refusing to be flexible when their scheduled activities interfered with visitation arrangements. While the mother denied some of these claims, Family Court credited the father, and this Court defers to such assessments ( see Matter of Darrow v. Darrow, 106 A.D.3d 1388, 1390, 965 N.Y.S.2d 673 [2013];Matter of Torkildsen v. Torkildsen, 72 A.D.3d 1405, 1407, 900 N.Y.S.2d 193 [2010] ). Further, “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 [2008];accord Matter of Casarotti v. Casarotti, 107 A.D.3d 1336, 1337, 967 N.Y.S.2d 783 [2013],lv. denied22 N.Y.3d 852, 2013 WL 5614329 [2013] ), and both sons—then 13 and 15 years old—strongly and openly expressed a preference to reside with the father. Accordingly, Family Court properly turned to an analysis of their best interests.
Upon considering “the relative fitness, stability, past performance, and home environment of the parents, as well as their ability to guide and nurture the children and foster a relationship with the other parent,” we find no reason to disturb Family Court's determination (Matter of Arieda v. Arieda–Walek, 74 A.D.3d 1432, 1433, 901 N.Y.S.2d 766 [2010] [internal quotation marks and citation omitted]; see Matter of Smith v. Barney, 101 A.D.3d 1499, 1500–1501, 957 N.Y.S.2d 766 [2012]; Matter of Jeker v. Weiss, 77 A.D.3d 1069, 1070, 909 N.Y.S.2d 184 [2010] ). The evidence established that both parties are loving parents who were aware of and attentive to the sons' medical and educational needs and were capable of providing them with suitable homes. Family Court credited the mother for her success as the sons' primary caretaker since 2003, noting that they had done well academically and athletically in her care. Nevertheless, the evidence supports the court's further observation that her hostility toward the father had eventually alienated the sons from her as well as interfered with their relationship with him—conduct “so inconsistent with the best interests of the [sons] as to, per se, raise a strong probability that [the mother] is unfit to act as custodial parent” (Matter of Greene v. Robarge, 104 A.D.3d 1073, 1075–1076, 962 N.Y.S.2d 470 [2013] [internal quotation marks and citations omitted]; see Jeannemarie O. v. Richard P., 94 A.D.3d 1346, 1348, 943 N.Y.S.2d 246 [2012] ). Additionally, the mother acknowledged that she did not permit the sons to visit their maternal grandparents, despite the sons' desire to do so, because her relationship with the grandparents had broken down. By contrast, the father testified that he would encourage the sons to visit these grandparents, as well as other extended family members who lived near his Brooklyn home; he further testified that he would encourage visits with the mother, and that he had provided them with cell phones to maintain contact with her while they temporarily resided with him. The record thus supports the conclusion that the father is more likely than the mother to support and nurture the sons' relationship with the other parent ( see Matter of Anthony MM. v. Jacquelyn NN., 91 A.D.3d 1036, 1038, 937 N.Y.S.2d 360 [2012] ).
Although a move to Brooklyn would require the sons to leave the Greene County school district they had attended since 2003, the record reveals that academic and athletic advantages were available to them in Brooklyn, and both sons wished to pursue these opportunities. We note the mother's argument relative to an issue about which Family Court found the father to have been untruthful, but find that the court took appropriate steps addressing this matter, and the record supports the conclusion that there was no resulting deleterious impact upon the sons. Considering all of the evidence—and, in particular, the mother's hostility toward the father and the sons' strongly expressed preference to reside with him—we find a sound and substantial basis in the record for the conclusion that granting physical custody to the father was in their best interests ( see Matter of Casarotti v. Casarotti, 107 A.D.3d at 1339–1340, 967 N.Y.S.2d 783;Matter of Burch v. Willard, 57 A.D.3d at 1273, 870 N.Y.S.2d 141;Matter of Passero v. Giordano, 53 A.D.3d 802, 804, 861 N.Y.S.2d 479 [2008] ).
ORDERED that the order is affirmed, without costs. PETERS, P.J., LAHTINEN and ROSE, JJ., concur.