Opinion
779 CAF 18–00056
10-04-2019
In the Matter of Casey KELLER, Petitioner–Respondent, v. Jessica M. KELLER, Respondent–Appellant.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT–APPELLANT. STUART J. LAROSE, SYRACUSE, FOR PETITIONER–RESPONDENT. MICHAEL J. KERWIN, MANLIUS, ATTORNEY FOR THE CHILD.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT–APPELLANT.
STUART J. LAROSE, SYRACUSE, FOR PETITIONER–RESPONDENT.
MICHAEL J. KERWIN, MANLIUS, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND DEJOSEPH, 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 mother appeals from an order granting petitioner father sole legal and physical custody of the subject child. Contrary to the mother's contention, we conclude that the father established the requisite change in circumstances sufficient to warrant an inquiry into whether the existing custody arrangement was in the best interests of the child. It is well settled that "the continued deterioration of the parties' relationship is a significant change in circumstances justifying a change in custody" ( Matter of Gaudette v. Gaudette, 262 A.D.2d 804, 805, 691 N.Y.S.2d 681 [3d Dept. 1999], lv denied 94 N.Y.2d 790, 700 N.Y.S.2d 421, 722 N.E.2d 501 [1999] ; see Lauzonis v. Lauzonis, 120 A.D.3d 922, 924, 992 N.Y.S.2d 586 [4th Dept. 2014] ). Here, the evidence at the hearing established that "the parties have an acrimonious relationship and are not able to communicate effectively with respect to the needs and activities of their child[ ], and it is well settled that joint custody is not feasible under those circumstances" ( Leonard v. Leonard, 109 A.D.3d 126, 128, 968 N.Y.S.2d 762 [4th Dept. 2013] ). Contrary to the mother's further contention, Family Court did not err in granting sole legal and physical custody to the father. "The court's determination with respect to the child's best interests ‘is entitled to great deference and will not be disturbed [where, as here,] it is supported by a sound and substantial basis in the record’ " ( Matter of Ladd v. Krupp, 136 A.D.3d 1391, 1393, 24 N.Y.S.3d 834 [4th Dept. 2016] ;see Williams v. Williams, 100 A.D.3d 1347, 1348, 953 N.Y.S.2d 421 [4th Dept. 2012] ). Finally, the mother's contention that reversal is warranted because the court was biased against her is unpreserved for our review inasmuch as "[s]he failed to make a motion asking the court to recuse itself" ( Matter of Shonyo v. Shonyo, 151 A.D.3d 1595, 1596, 56 N.Y.S.3d 390 [4th Dept. 2017], lv denied 30 N.Y.3d 901, 2017 WL 4543499 [2017] ), but we would be remiss in failing to admonish the Referee, the Attorney for the Child, and the mother's own counsel for their unseemly conduct and unprofessional comments throughout the hearing. While we acknowledge that Family Court matters can be emotional and taxing on the parties, that is not an excuse for a lapse in courtroom decorum from the attorneys and professionals in attendance. In any event, we conclude that the mother's contention lacks merit inasmuch as the record does not establish that the court was biased or prejudiced against her (see Matter of Kaylee D. [Kimberly D.] , 154 A.D.3d 1343, 1343, 61 N.Y.S.3d 783 [4th Dept. 2017] ), despite the Referee's intemperate remarks.