Opinion
466 CAF 17–00603
07-06-2018
In the Matter of Korey W. SMITH, Petitioner–Respondent, v. Kassi L. LOPEZ, Respondent–Appellant. (Appeal No. 1.)
FRANK H. HISCOCK, LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR RESPONDENT–APPELLANT. HANCOCK ESTABROOK, LLP, SYRACUSE (JANET D. CALLAHAN OF COUNSEL), FOR PETITIONER–RESPONDENT. HEIDI S. CONNOLLY, SKANEATELES, ATTORNEY FOR THE CHILD.
FRANK H. HISCOCK, LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR RESPONDENT–APPELLANT.
HANCOCK ESTABROOK, LLP, SYRACUSE (JANET D. CALLAHAN OF COUNSEL), FOR PETITIONER–RESPONDENT.
HEIDI S. CONNOLLY, SKANEATELES, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., CENTRA, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Appeal from an order of the Family Court, Onondaga County (William Rose, R.), entered February 1, 2017 in a proceeding pursuant to Family Court Act article 6. The order, among other things, awarded petitioner primary physical custody of the subject child.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner-respondent father commenced this proceeding pursuant to Family Court Act article 6 and, by amended petition, sought to modify a prior order of custody by awarding him primary physical custody of the subject child. Respondent-petitioner mother filed an amended cross petition also seeking modification of the prior custody order by awarding her primary physical custody, and other relief. The mother appeals from an order that, among other things, denied and dismissed her amended cross petition, and granted the amended petition. We reject the mother's contention that Family Court erred in awarding primary physical custody to the father.
The mother contends that the court erred in failing to make a specific finding of the requisite change in circumstances and erred insofar as it implicitly concluded that there had been such a change. We disagree with the latter contention. Initially, although the court failed to expressly determine whether there had been a sufficient change in circumstances to warrant an inquiry into the best interests of the child on the issue of custody, " ‘our review of the record reveals extensive findings of fact, placed on the record by Family Court, which demonstrate unequivocally that a significant change in circumstances occurred since the entry of the consent custody order’ " ( Matter of Morrissey v. Morrissey, 124 A.D.3d 1367, 1367, 1 N.Y.S.3d 678 [4th Dept. 2015], lv denied 25 N.Y.3d 902, 2015 WL 1471754 [2015] ; see Matter of Aronica v. Aronica, 151 A.D.3d 1605, 1605, 56 N.Y.S.3d 701 [4th Dept. 2017] ).
Furthermore, the evidence supports the court's implicit conclusion that the father, as the "party seeking a change in an established custody arrangement[,] ... show[ed] a change in circumstances [that] reflects a real need for change to ensure the best interest[s] of the child" ( Matter of Dormio v. Mahoney, 77 A.D.3d 1464, 1465, 908 N.Y.S.2d 378 [4th Dept. 2010], lv denied 16 N.Y.3d 702, 2011 WL 135236 [2011] [internal quotation marks omitted]; see Matter of Moore v. Moore, 78 A.D.3d 1630, 1630, 910 N.Y.S.2d 803 [4th Dept. 2010], lv denied 16 N.Y.3d 704, 2011 WL 500900 [2011] ; Matter of Perry v. Korman, 63 A.D.3d 1564, 1565, 880 N.Y.S.2d 815 [4th Dept. 2009] ). The father met that burden by establishing, inter alia, that the mother relocated her and the child's residence several times within a relatively short time frame (see Shaw v. Shaw, 155 A.D.3d 1673, 1674, 64 N.Y.S.3d 828 [4th Dept. 2017] ; Matter of Carey v. Windover, 85 A.D.3d 1574, 1574, 925 N.Y.S.2d 360 [4th Dept. 2011], lv denied 17 N.Y.3d 710, 2011 WL 4357160 [2011] ), and that the mother had a mental health condition that was not adequately treated (see Matter of Farner v. Farner, 152 A.D.3d 1212, 1214, 60 N.Y.S.3d 613 [4th Dept. 2017] ).
We reject the mother's further contentions that the court made intemperate remarks that demonstrate prejudice against her, and that it erred in failing to limit its determination to the issues to which the parties did not stipulate. Where, as here, the parties stipulated to certain issues related to custody and visitation, the court is not bound by that stipulation and instead must consider the child's best interests in resolving those issues, regardless of the parties' stipulation (see generally Kelly v. Kelly, 19 A.D.3d 1104, 1106, 797 N.Y.S.2d 666 [4th Dept. 2005], appeal dismissed 5 N.Y.3d 847, 805 N.Y.S.2d 547, 839 N.E.2d 901 [2005], reconsideration denied 6 N.Y.3d 803, 812 N.Y.S.2d 440, 845 N.E.2d 1270 [2006] ; Matter of Sliwinski v. Erie County Dept. of Social Servs., 195 A.D.2d 1056, 1057–1058, 600 N.Y.S.2d 401 [4th Dept. 1993] ). Here, the mother previously alleged that her paramour, who had ongoing substance abuse issues, had engaged in domestic violence toward her in the presence of the child, and she refused to stipulate during this custody proceeding that he would not be left in charge of, or alone with, the subject child. Based on, inter alia, those facts, we agree that the court's determination to award primary physical custody to the father and to grant the mother visitation is in the child's best interests. Additionally, although the court's intemperate remarks reflected a lack of patience that is not appropriate in this delicate matter (see generally Matter of Esworthy, 77 N.Y.2d 280, 282–283, 567 N.Y.S.2d 390, 568 N.E.2d 1195 [1991] ; Matter of Wilson v. Kilkenny, 73 A.D.3d 796, 798, 900 N.Y.S.2d 389 [2d Dept. 2010], lv dismissed 15 N.Y.3d 817, 908 N.Y.S.2d 150, 934 N.E.2d 883 [2010], rearg. denied 15 N.Y.3d 917, 913 N.Y.S.2d 641, 939 N.E.2d 808 [2010] ), we discern no indication of bias (see Matter of Hanehan v. Hanehan, 8 A.D.3d 712, 714, 778 N.Y.S.2d 539 [3d Dept. 2004] ; cf. Matter of Hannah B. [Theresa B.], 108 A.D.3d 528, 531, 968 N.Y.S.2d 188 [2d Dept. 2013] ).
We have considered the mother's remaining contentions and conclude that none warrants modification or reversal of the order.