Opinion
2019–08606 Docket Nos. V–3011–14, V–3013–14
11-04-2020
In the Matter of Scott H. PRYNE, petitioner, v. Jennifer J. PRYNE, respondent-respondent; Abigail P. (Anonymous), et al., nonparty-appellants, v. Jake P. (Anonymous), nonparty-respondent.
Pat Bonanno, White Plains, NY, attorney for the children Abigail P. and Neal P., the nonparty-appellants. Bloom & Bloom, P.C., New Windsor, NY (Peter E. Bloom of counsel), for respondent-respondent. Robert M. Rametta, Goshen, NY, attorney for the child Jake P. Joseph J. Artrip, Cornwall, NY, for petitioner.
Pat Bonanno, White Plains, NY, attorney for the children Abigail P. and Neal P., the nonparty-appellants.
Bloom & Bloom, P.C., New Windsor, NY (Peter E. Bloom of counsel), for respondent-respondent.
Robert M. Rametta, Goshen, NY, attorney for the child Jake P.
Joseph J. Artrip, Cornwall, NY, for petitioner.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 6, the children Abigail P. and Neal P. appeal from an order of the Family Court, Orange County (Lori Currier Woods, J.), dated June 19, 2019. The order, insofar as appealed from, after a hearing, denied the father's petition for sole physical custody of the subject children, and modified a prior order of the same court, dated December 11, 2014, by awarding the mother sole legal and physical custody of the subject children, with liberal parental access to the father.
ORDERED that the order dated June 19, 2019, is affirmed, without costs or disbursements.
The parties, who are divorced, have three children in common: Neal P., who was born in 2003, Abigail P., who was born in 2004, and Jake P., who was born in 2008. Pursuant to an order of custody and visitation dated December 11, 2014 (hereinafter the 2014 order), the parties shared joint legal custody of the subject children, with the mother having physical custody and final decision-making authority. In 2018, the father petitioned for modification of the 2014 order so as to award him physical custody of the three children, based upon the alleged preferences of the subject children. Following a hearing, the Family Court determined that there had been a sufficient change of circumstances to warrant a modification of the 2014 order, and, inter alia, granted the mother sole legal and physical custody of the subject children, with liberal parental access to the father. Neal and Abigail appeal.
In order to modify an existing custody arrangement, there must be a showing of a change of circumstances such that modification is required to protect the best interests of the children (see Matter of Newton v. McFarlane, 174 A.D.3d 67, 103 N.Y.S.3d 445 ; Matter of Vargas v. Gutierrez, 155 A.D.3d 751, 752, 64 N.Y.S.3d 76 ; Matter of Lao v. Gonzales, 130 A.D.3d 624, 624–625, 13 N.Y.S.3d 211 ; Matter of Fallarino v. Ayala, 41 A.D.3d 714, 714, 838 N.Y.S.2d 176 ). Since the Family Court's custody determination is largely dependent upon an assessment of the credibility of witnesses and upon the character, temperament, and sincerity of the parents, the court's custody determination should not be set aside unless it lacks a sound and substantial basis in the record (see Matter of Vargas v. Gutierrez, 155 A.D.3d at 753, 64 N.Y.S.3d 76 ; Matter of Lao v. Gonzales, 130 A.D.3d at 625, 13 N.Y.S.3d 211 ; Matter of Ross v. Ross, 86 A.D.3d 615, 616, 928 N.Y.S.2d 303 ).
Here, the Family Court's determination is supported by a sound and substantial basis in the record. The mother has been the custodial parent for all three children for a significant amount of time. Moreover, although Neal and Abigail have expressed a preference for granting the father sole custody, Jake has expressed a preference for remaining in the mother's custody. " ‘Courts will not disrupt sibling relationships unless there is an overwhelming need to do so’ " ( Matter of Plissner v. Louie, 174 A.D.3d 618, 620, 101 N.Y.S.3d 873, quoting Matter of Shannon J. v. Aaron P., 111 A.D.3d 829, 831, 975 N.Y.S.2d 152 ). "Moreover, ‘a child's preference is not determinative and, in weighing this factor, the court must consider the age and maturity of the child’ " ( Matter of Plissner v. Louie, 174 A.D.3d at 620, 101 N.Y.S.3d 873, quoting Matter of Lao v. Gonzales, 130 A.D.3d at 625, 13 N.Y.S.3d 211 ; see Eschbach v. Eschbach, 56 N.Y.2d 167, 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). Under the circumstances of this case, where, inter alia, the teenaged children Neal and Abigail apparently sought a change of physical custody to the father in order to escape from the more structured constraints imposed by the mother to the more indulgent parenting style of the father, the court providently exercised its discretion in according relatively little weight to the preferences of Neal and Abigail, in relation to the other relevant factors (see Matter of Plissner v. Louie, 174 A.D.3d at 620, 101 N.Y.S.3d 873 ; Matter of Lao v. Gonzales, 130 A.D.3d at 625, 13 N.Y.S.3d 211 ). Furthermore, given the evidence adduced demonstrating the parties' inability to coparent, as well as, inter alia, the father's tendency to undermine the mother's authority and to position himself more as a peer than a parent with respect to the subject children, the court also providently determined that it was in the best interest of the subject children to grant sole legal and physical custody of the children to the mother.
MASTRO, J.P., CHAMBERS, IANNACCI and CHRISTOPHER, JJ., concur.