Opinion
936 CAF 20-00306
02-11-2021
In the Matter of Frederick A. LABELLA, Petitioner-Respondent, v. Gabrielle M. ROBERTACCIO, Respondent-Appellant. Kimberly M. Seager, Esq., Attorney for the Child, Appellant; and Sharon P. O'Hanlon, Esq., Attorney for the Child, Appellant.
PETER J. DIGIORGIO, JR., UTICA, FOR RESPONDENT-APPELLANT. KIMBERLY M. SEAGER, FULTON, ATTORNEY FOR THE CHILD, APPELLANT PRO SE. SHARON P. O'HANLON, SYRACUSE, ATTORNEY FOR THE CHILD, APPELLANT PRO SE. COHEN & COHEN, UTICA (RICHARD A. COHEN OF COUNSEL), FOR PETITIONER-RESPONDENT.
PETER J. DIGIORGIO, JR., UTICA, FOR RESPONDENT-APPELLANT.
KIMBERLY M. SEAGER, FULTON, ATTORNEY FOR THE CHILD, APPELLANT PRO SE.
SHARON P. O'HANLON, SYRACUSE, ATTORNEY FOR THE CHILD, APPELLANT PRO SE.
COHEN & COHEN, UTICA (RICHARD A. COHEN OF COUNSEL), FOR PETITIONER-RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, WINSLOW, 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 mother and each appellate Attorney for the Child (AFC) assigned to the two subject children appeal from an order that modified the custody and visitation provisions of a judgment of divorce, pursuant to which the mother had primary physical residence of both children, by, inter alia, awarding petitioner father primary physical residence of the older child. We affirm.
We reject the contention of the mother and both appellate AFCs that the father failed to meet his initial burden of demonstrating the requisite change in circumstances warranting an inquiry into the best interests of the children. The father established, inter alia, that there had been a significant deterioration in the relationship between the mother and the older child, which culminated in a physical altercation between them that was the subject of a police report and an investigation by child protective services (see Matter of Rice v. Wightman , 167 A.D.3d 1529, 1530, 90 N.Y.S.3d 774 [4th Dept. 2018], lv denied 33 N.Y.3d 903, 2019 WL 1997567 [2019] ).
Contrary to the related contention of the mother and both appellate AFCs, we conclude that Family Court did not abuse its discretion in awarding the father primary physical residence of the older child. The court's determination that " ‘the best interests of the children warrant their residence with different parents’ " is supported by a sound and substantial basis in the record ( Matter of Smith v. Smith , 241 A.D.2d 980, 980, 667 N.Y.S.2d 141 [4th Dept. 1997] ; see generally Cunningham v. Cunningham , 137 A.D.3d 1704, 1705, 28 N.Y.S.3d 751 [4th Dept. 2016] ; Sheridan v. Sheridan , 129 A.D.3d 1567, 1568, 12 N.Y.S.3d 434 [4th Dept. 2015] ).
Both appellate AFCs further contend that the court erred in initially awarding the father temporary physical residence of the older child without a hearing. That contention is moot, however, because the temporary orders granting physical residence of the older child to the father pending trial were superseded by the order on appeal (see Matter of Kirkpatrick v. Kirkpatrick , 137 A.D.3d 1695, 1696, 28 N.Y.S.3d 202 [4th Dept. 2016] ; Matter of Viscuso v. Viscuso , 129 A.D.3d 1679, 1682, 12 N.Y.S.3d 684 [4th Dept. 2015] ).
We also reject the contention of the appellate AFC for the older child that the court erred in allowing the attorney who had jointly represented the subject children in the parties’ divorce proceeding in 2015 to represent the older child, but not the younger child, at the trial in this case in 2019. The children were entitled to separate counsel in the trial here due to their differing views (see Matter of Brian S. [Tanya S.] , 141 A.D.3d 1145, 1148, 34 N.Y.S.3d 851 [4th Dept. 2016] ), and a different trial AFC was appointed to represent the younger child. Moreover, there was no " ‘reasonable probability’ " that the younger child had revealed confidences to the older child's trial AFC that were "relevant to the subject matter of [the present] litigation" ( Matter of H. Children , 160 Misc 2d 298, 300-301, 608 N.Y.S.2d 784 [Fam. Ct., Kings County 1994], quoting Greene v. Greene , 47 N.Y.2d 447, 453, 418 N.Y.S.2d 379, 391 N.E.2d 1355 [1979] ; cf. Smith , 241 A.D.2d at 980, 667 N.Y.S.2d 141 ). We note that the older child's trial AFC advocated for a position that was consistent with the preferences that the older child expressed to the court at the Lincoln hearing.
Finally, we have considered the remaining contention of the older child's appellate AFC and conclude that it does not warrant modification or reversal of the order.