Opinion
2021-03750
06-11-2021
IN THE MATTER OF JENNIFER KOPCIOWSKI, PETITIONER-RESPONDENT, v. HENRY KOPCIOWSKI, RESPONDENT-APPELLANT. IN THE MATTER OF HENRY KOPCIOWSKI, PETITIONER-APPELLANT, v. JENNIFER KOPCIOWSKI, RESPONDENT-RESPONDENT.
WILLIAM D. BRODERICK, JR., ELMA, FOR RESPONDENT-APPELLANT AND PETITIONER-APPELLANT. EMILY A. VELLA, SPRINGVILLE, ATTORNEY FOR THE CHILDREN.
WILLIAM D. BRODERICK, JR., ELMA, FOR RESPONDENT-APPELLANT AND PETITIONER-APPELLANT.
EMILY A. VELLA, SPRINGVILLE, ATTORNEY FOR THE CHILDREN.
PRESENT: CARNI, J.P., LINDLEY, CURRAN, BANNISTER, AND DEJOSEPH, JJ.
Appeal from an order of the Family Court, Erie County (Michael F. Griffith, A.J.), entered April 17, 2019 in a proceeding pursuant to Family Court Act article 6. The order, inter alia, awarded sole custody of the subject children to petitioner-respondent.
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 father appeals from an order that, inter alia, granted the petition of petitioner-respondent mother seeking to modify the parties' existing custody arrangement by awarding her sole custody of the parties' children. Contrary to the father's contention, the mother met her burden of establishing a change in circumstances sufficient to warrant an inquiry into whether a modification of the custody arrangement is in the best interests of the children (see Matter of Krier v Krier, 178 A.D.3d 1372, 1372 [4th Dept 2019]; Lauzonis v Lauzonis, 120 A.D.3d 922, 924 [4th Dept 2014]; Matter of Ingersoll v Platt, 72 A.D.3d 1560, 1561 [4th Dept 2010]).
" '[A] change in circumstances exists where, as here, the [parties'] relationship becomes so strained and acrimonious that communication between them is impossible'" (Matter of Gibbardo v Ramos, 169 A.D.3d 1482, 1482 [4th Dept 2019]; see Lauzonis, 120 A.D.3d at 924). Contrary to the father's further contention, there is a sound and substantial basis in the record for Family Court's determination that awarding the mother sole custody of the children is in their best interests (see generally Eschbach v Eschbach, 56 N.Y.2d 167, 171-172 [1982]; Matter of Orzech v Nikiel, 91 A.D.3d 1305, 1306 [4th Dept 2012]).
Assuming, arguendo, that the court erred in admitting in evidence the notes of the children's school counselor, we conclude that such error was harmless (see Matter of Nicole VV., 296 A.D.2d 608, 613 [3d Dept 2002], lv denied 98 N.Y.2d 616 [2002]). Indeed, there is a "sound and substantial basis in the record for the... [c]ourt's determination without consideration of [those notes]" (Matter of Tercjak v Tercjak, 49 A.D.3d 772, 773 [2d Dept 2008], lv denied 10 N.Y.3d 716 [2008]; see Matter of Cyle F. [Alexander F.], 155 A.D.3d 1626, 1626-1627 [4th Dept 2017], lv denied 30 N.Y.3d 911 [2018]).