Opinion
February 18, 1999
Appeal from the Family Court of Ulster County (Mizel, J.).
The parties are parents of a daughter (hereinafter the child) born in 1991. After the child's birth, she resided primarily with petitioner until December 1995 when legal custody was granted jointly, with physical custody of the child awarded to respondent who lives in Ulster County. In June 1996 petitioner, who had moved to Suffolk County, filed a petition seeking primary physical custody of the child and the hearing commenced in February 1997. However, during pendency of the proceedings, respondent was hospitalized. Petitioner then sought immediate temporary custody of the child and respondent consented to a temporary modification of the prior custody order due to his hospitalization for coronary bypass surgery. Accordingly, Family Court awarded temporary custody of the child to petitioner pending a final custody determination. The hearing reconvened approximately six months later, and Family Court determined that joint custody was no longer appropriate in light of the geographic distance between the parties. Petitioner's application was denied based on the finding that the child's welfare would not be "substantially enhanced" by awarding petitioner custody. Petitioner now appeals.
It is axiomatic that the best interest of the child is paramount in every custody case and the court should consider all relevant factors ( see, Eschbach v. Eschbach, 56 N.Y.2d 167, 171; Matter of Farnham v. Farnham, 252 A.D.2d 675, 676; Matter of Brewer v. Whitney, 245 A.D.2d 842). When seeking a modification of an established custody arrangement, however, petitioner must demonstrate a sufficient change in circumstances necessitating an alteration in furtherance of the best interest of the child ( see, Matter of Reese v. Jones, 249 A.D.2d 676, 677; Matter of Karpensky v. Karpensky, 235 A.D.2d 594, 595; Matter of Williams v. Williams, 188 A.D.2d 906, 907).
We reject petitioner's contention that the best interest of the child would be served by a change in permanent custody. The record reveals that petitioner is unemployed, receives disability and Social Services benefits, and is currently on probation stemming from criminal charges in 1995. Additionally, petitioner has moved seven times since the child's birth and currently resides in Suffolk County with her boyfriend. A witness on behalf of respondent testified that on one occasion, petitioner left the child sleeping in her car while she was drinking at a bar. Another witness indicated that she has witnessed petitioner using cocaine and driving after consuming alcoholic beverages on various occasions.
In contrast, respondent presented evidence establishing that he has provided a stable and nurturing environment for the child. Witnesses on behalf of respondent testified that he properly cares for the child, helps her with homework, assists her with the computer and always has her dressed and ready for school. Respondent's 26-year-old daughter, the mother of two children, testified that she was raised solely by respondent and that he often participated in activities with her including attending church, roller skating, bike riding, fishing and camping. Further, she is in daily contact with her father and has witnessed respondent properly caring for the child. Although the living quarters of respondent are somewhat limited and not ideal, a similar living arrangement exists with petitioner.
Family Court accepted into evidence a health evaluation report prepared in 1995 by Ann Mundt, a court-appointed psychologist. She stated that she found petitioner to be friendly but to have poor judgment. Although Mundt opined that respondent was somewhat depressed, she indicated that he maintained appropriate judgment and insight and engaged the child in a more structured learning pattern. While Mundt recommended that petitioner receive primary physical custody of the child, her recommendation was based primarily on petitioner's greater ability to physically care for the child. Despite respondent's use of a wheelchair, his physician opined that respondent has no medical restrictions and his cardiac condition has improved. Moreover, although not dispositive, the Law Guardian recommended that respondent retain sole legal and primary physical custody ( see, Morehouse v. Morehouse, 251 A.D.2d 710, 711).
According considerable deference to Family Court's factual findings ( see, Matter of Machukas v. Wagner, 246 A.D.2d 840, 841, lv denied 91 N.Y.2d 813) and taking into consideration all relevant factors, including the quality and nature of the parties' respective home environments, relative fitness of the parties, and ability to engage the child's intellectual and emotional development ( see, Matter of De Losh v. De Losh, 235 A.D.2d 851, 852, lv denied 89 N.Y.2d 813; Matter of Alice A. v. Joshua B., 232 A.D.2d 777, 779), we conclude that the record provides a sound and substantial basis ( see, Matter of Hubbard v. Hubbard, 221 A.D.2d 807) to affirm Family Court's award of sole custody to respondent and that such determination is in the best interest of the child.
Mikoll, J. P., Yesawich Jr., Spain and Carpinello, JJ., concur.
Ordered that the order is affirmed, without costs.