Opinion
921 CAF 21-01489
02-03-2023
In the Matter of Todd E. DICKES, Petitioner-Respondent-Respondent, v. Nicole L. JOHNSTON, Respondent-Petitioner-Appellant. Maureen Polen, Esq., Attorney for the Child, Appellant.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR RESPONDENT-PETITIONER-APPELLANT. MAUREEN POLEN, ROCHESTER, ATTORNEY FOR THE CHILD, APPELLANT PRO SE.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR RESPONDENT-PETITIONER-APPELLANT.
MAUREEN POLEN, ROCHESTER, ATTORNEY FOR THE CHILD, APPELLANT PRO SE.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 6, respondent-petitioner mother and the Attorney for the Child (AFC) appeal from an order that, inter alia, effectively granted in part petitioner-respondent father's supplemental petition seeking to modify a prior custody order by increasing his parenting time with the subject child.
The mother and the AFC contend that the father failed to establish a change in circumstances sufficient to warrant an inquiry into whether a modification of the prior custody order is in the best interests of the child. The mother, however, waived that contention "inasmuch as [she] alleged in her own ... petition[ ] that there had been such a change in circumstances" ( Matter of Allison v. Seeley-Sick , 199 A.D.3d 1490, 1492, 158 N.Y.S.3d 480 [4th Dept. 2021] [internal quotation marks omitted]). In any event, while we agree with the mother and the AFC that Family Court did not expressly determine that there was a sufficient change in circumstances, this Court may "independently review the record to ascertain whether the requisite change in circumstances existed" ( Matter of DeVore v. O'Harra-Gardner , 177 A.D.3d 1264, 1265, 112 N.Y.S.3d 380 [4th Dept. 2019] [internal quotation marks omitted]). Contrary to the contention of the mother and the AFC, our review of the record reveals "extensive findings of fact, placed on the record by [the court]," which demonstrate that a change in circumstances occurred since the entry of the prior custody order ( Matter of Aronica v. Aronica , 151 A.D.3d 1605, 1605, 56 N.Y.S.3d 701 [4th Dept. 2017] [internal quotation marks omitted]). Specifically, affording great weight to the court's assessment of the credibility of the witnesses (see Matter of Paliani v. Selapack , 178 A.D.3d 1425, 1426, 112 N.Y.S.3d 670 [4th Dept. 2019], lv denied 35 N.Y.3d 905, 2020 WL 3056407 [2020] ), we conclude that the father established that the mother had a pattern of violating the prior custody order (see Matter of Moreno v. Elliott , 170 A.D.3d 1610, 1611, 94 N.Y.S.3d 500 [4th Dept. 2019] ; Matter of Green v. Bontzolakes , 111 A.D.3d 1282, 1283-1284, 974 N.Y.S.2d 211 [4th Dept. 2013] ), and "the evidence that the mother was interfering with the father's visitation with the child[ ] was sufficient to establish the requisite change in circumstances" ( Matter of Amrane v. Belkhir , 141 A.D.3d 1074, 1075, 34 N.Y.S.3d 823 [4th Dept. 2016] ; see Matter of Murphy v. Wells , 103 A.D.3d 1092, 1093, 958 N.Y.S.2d 560 [4th Dept. 2013], lv denied 21 N.Y.3d 854, 2013 WL 1831640 [2013] ).
Contrary to the further contention of the mother and the AFC, we conclude that a sound and substantial basis exists in the record to support the court's determination that it is in the best interests of the child to increase the father's parenting time (see generally Moreno , 170 A.D.3d at 1611, 94 N.Y.S.3d 500 ). Although it is true that "an award of custody must be based on the best interests of the child[ ] and not a desire to punish a recalcitrant parent" ( Verity v. Verity , 107 A.D.2d 1082, 1084, 486 N.Y.S.2d 505 [4th Dept. 1985], affd 65 N.Y.2d 1002, 494 N.Y.S.2d 96, 484 N.E.2d 125 [1985] ), the modification here does not reflect a punishment for the mother's violations of the prior custody order or a reward for the father's compliance, but rather constitutes a rebalancing of parenting time in the best interests of the child.