Opinion
782 CAF 17–00983
06-15-2018
In the Matter of Robert M. BIERNBAUM, Petitioner–Respondent, v. Mary E. BURDICK, Respondent–Appellant. Teresa M. Pare, Esq., Attorney for the Children, Appellant.
KELLY WHITE DONOFRIO LLP, ROCHESTER (DONALD A. WHITE OF COUNSEL), FOR RESPONDENT–APPELLANT. TERESA M. PARE, CANANDAIGUA, ATTORNEY FOR THE CHILDREN, APPELLANT PRO SE. BARNEY & AFFRONTI, LLP, ROCHESTER (BRIAN J. BARNEY OF COUNSEL), FOR PETITIONER–RESPONDENT.
KELLY WHITE DONOFRIO LLP, ROCHESTER (DONALD A. WHITE OF COUNSEL), FOR RESPONDENT–APPELLANT.
TERESA M. PARE, CANANDAIGUA, ATTORNEY FOR THE CHILDREN, APPELLANT PRO SE.
BARNEY & AFFRONTI, LLP, ROCHESTER (BRIAN J. BARNEY OF COUNSEL), FOR PETITIONER–RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, LINDLEY, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent mother and the Attorney for the Children (AFC) appeal from an order that continued joint custody of the parties' children and granted the father's amended petition to modify the existing custody and visitation schedule so that each party would have custody of the children for an equal amount of time. We conclude that the mother waived her contention that the father failed to establish a change of circumstances warranting an inquiry into the best interests of the children inasmuch as the mother alleged in her own cross petition that there had been such a change in circumstances (see Panaro v. Panaro , 133 A.D.3d 1306, 1307, 21 N.Y.S.3d 505 [4th Dept. 2015] ). In any event, we agree with the father that he established the requisite change of circumstances based on the increasing animus between the parties, the deterioration of the father's relationship with the children and the psychological issues that had arisen with one of the children (see Fermon v. Fermon , 135 A.D.3d 1045, 1046, 24 N.Y.S.3d 226 [3d Dept. 2016] ; Matter of O'Loughlin v. Sweetland, , 98 A.D.3d 983, 984, 951 N.Y.S.2d 160 [2d Dept. 2012] ; Matter of Stilson v. Stilson , 93 A.D.3d 1222, 1223, 940 N.Y.S.2d 426 [4th Dept. 2012] ).
Contrary to the contention of the mother and the AFC, we conclude that Family Court did not err in modifying the parties' prior agreement with respect to the custody and visitation schedule. The record establishes that the court's determination resulted from a "careful weighing of [the] appropriate factors ..., and ... has a sound and substantial basis in the record" ( Matter of Talbot v. Edick , 159 A.D.3d 1406, 1407, 70 N.Y.S.3d 137 [4th Dept. 2018] [internal quotation marks omitted]; see generally Fox v. Fox , 177 A.D.2d 209, 210, 582 N.Y.S.2d 863 [4th Dept. 1992] ).
We reject the AFC's contention that the court erred in failing to consider the preferences of the children. Although the express wishes of the children are entitled to great weight, the " ‘[c]ourt is ... not required to abide by the wishes of a child to the exclusion of other factors in the best interests analysis’ " ( Matter of Marino v. Marino , 90 A.D.3d 1694, 1696, 935 N.Y.S.2d 818 [4th Dept. 2011] ). Here, the court did not err in failing to abide by the wishes of the children inasmuch as there is evidence in the record that the mother's animus toward the father had negatively affected the children's relationship with him, and the court-appointed psychologist opined that the children's interests would be best served by an equal split in time between the parties (see Sheridan v. Sheridan , 129 A.D.3d 1567, 1568–1569, 12 N.Y.S.3d 434 [4th Dept. 2015] ; Marino , 90 A.D.3d at 1696, 935 N.Y.S.2d 818 ).