Opinion
848 CAF 18-00611
11-08-2019
In the Matter of Joshua N. DEVORE, Petitioner-Respondent, v. Dhanaiah M. O'HARRA-GARDNER, Respondent-Appellant.
CARA A. WALDMAN, FAIRPORT, FOR RESPONDENT–APPELLANT.
CARA A. WALDMAN, FAIRPORT, FOR RESPONDENT–APPELLANT.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, 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 appeals from an order that modified the parties' prior order of custody and visitation by, inter alia, granting petitioner father custody of the subject child. We affirm.
Initially, we reject the mother's contention that Family Court erred in denying her motion to dismiss the petition, which was made following the close of the father's proof (see generally Matter of William EE. v. Christy FF., 151 A.D.3d 1196, 1197, 55 N.Y.S.3d 818 [3d Dept. 2017] ). The father presented evidence during his case-in-chief that the mother failed to follow the visitation provisions of the court's order and that she had frustrated his telephonic access to the child. We conclude that this evidence, viewed in the light most favorable to the father, demonstrated a change in circumstances that, if established, would warrant an inquiry into whether modification of the order would be in the child's best interests, and thus the court properly denied the motion (see id. ; Matter of Dubiel v. Schaefer, 108 A.D.3d 1093, 1093–1094, 969 N.Y.S.2d 311 [4th Dept. 2013] ).
We agree with the mother that the court failed to satisfy its obligation to make an express finding whether the father, in support of his petition to modify the prior custody and visitation order, established the requisite change in circumstances before it analyzed whether an order granting custody to the father was in the child's best interests. We remind the court that "alteration of an established custody arrangement will be ordered only upon a showing of a change in circumstances which reflects a real need for change to ensure the best interest[s] of the child" ( Matter of Irwin v. Neyland, 213 A.D.2d 773, 773, 623 N.Y.S.2d 18 [3d Dept. 1995] [emphasis added]; see Matter of Austin v. Wright, 151 A.D.3d 1861, 1862, 57 N.Y.S.3d 822 [4th Dept. 2017] ; Matter of McClinton v. Kirkman, 132 A.D.3d 1245, 1245–1246, 18 N.Y.S.3d 485 [4th Dept. 2015] ).
Although the court did not expressly determine that there was a sufficient change in circumstances to warrant an inquiry into whether the best interests of the child would be served by a change in custody, this Court may " ‘independently review the record’ to ascertain whether the requisite change in circumstances existed" ( Matter of Curry v. Reese, 145 A.D.3d 1475, 1475, 44 N.Y.S.3d 279 [4th Dept. 2016] ). Our review of the record reveals "extensive findings of fact, placed on the record by [the court], which demonstrate unequivocally that a significant change in circumstances occurred since the entry of the consent custody order" ( Matter of Aronica v. Aronica, 151 A.D.3d 1605, 1605, 56 N.Y.S.3d 701 [4th Dept. 2017] [internal quotation marks omitted]; see Matter of Morrissey v. Morrissey, 124 A.D.3d 1367, 1367, 1 N.Y.S.3d 678 [4th Dept. 2015], lv denied 25 N.Y.3d 902, 2015 WL 1471754[2015] ). Specifically, we note evidence in the record that the child was performing poorly in school, that his attendance there was flagging, and that the mother was alienating the child from the father (see Matter of Brewer v. Soles, 111 A.D.3d 1403, 1403–1404, 975 N.Y.S.2d 299 [4th Dept. 2013] ; Dubiel, 108 A.D.3d at 1093–1094, 969 N.Y.S.2d 311 ).
We further conclude that, contrary to the mother's contention, the court did not err in awarding custody of the subject child to the father. It is well settled that "a court's determination regarding custody ..., based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record" (Matter of Nevin H. [Stephanie H.] [appeal No. 1], 164 A.D.3d 1090, 1093, 83 N.Y.S.3d 390 [4th Dept. 2018] [internal quotation marks omitted]; see Matter of Krug v. Krug, 55 A.D.3d 1373, 1374, 865 N.Y.S.2d 450 [4th Dept. 2008] ), i.e., it is not "supported by a sound and substantial basis in the record" ( Krug, 55 A.D.3d at 1374, 865 N.Y.S.2d 450 [internal quotation marks omitted] ). Here, we see no basis to disturb the court's credibility assessment and factual findings, and we conclude that its custody determination is supported by a sound and substantial basis in the record.