Opinion
2012-10-18
In the Matter of Corey D. HAMILTON, Respondent, v. Shannon M. ANDERSON, Appellant.
Liam G.B. Murphy, Groton, for appellant. Carman M. Garufi, Binghamton, attorney for the child.
Liam G.B. Murphy, Groton, for appellant. Carman M. Garufi, Binghamton, attorney for the child.
Before: PETERS, P.J., LAHTINEN, STEIN, GARRY and EGAN JR., JJ.
EGAN JR., J.
Appeal from an order of the Family Court of Broome County (Connerton, J.), entered August 15, 2011, which, among other things, granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother), who never married, are the parents of a son (born in 2003). Pursuant to a prior order, the parties had joint legal custody of the child with primary physical custody to the mother and liberal visitation to the father. The father unsuccessfully attempted to gain physical custody of his son in 2005 and, in February 2011, commenced this modification proceeding seeking the same relief. Following a two-day hearing, as well as a Lincoln hearing with the child, Family Court granted the application and awarded primary physical custody to the father and liberal visitation to the mother. This appeal by the mother ensued.
“The case law makes clear that an existing custody order will be modified only when the party seeking the modification demonstrates a sufficient change in circumstances since entry of the prior order to warrant modification thereof in the child's best interest. Indeed, [i]t is only when this threshold showing has been made that Family Court may proceed to undertake a best interest analysis” ( Matter of Kerwin v. Kerwin, 39 A.D.3d 950, 951, 833 N.Y.S.2d 694 [2007] [internal quotation marks and citations omitted]; see Matter of Clark v. Ingraham, 88 A.D.3d 1079, 1079, 931 N.Y.S.2d 159 [2011];Matter of Fox v. Grivas, 81 A.D.3d 1014, 1015, 916 N.Y.S.2d 286 [2011] ). Here, the change in circumstances alleged by the father was the mother's decision to change residences twice in three months, which, in turn, required the child, who has behavioral and emotional problems, to change schools with each move. Concluding that such behavior demonstrated the mother's “lack of insight and concern for the [c]hild's problems,” Family Court awarded primary physical custody to the father.
This Court has long acknowledged that a custodial parent's decision to repeatedly change residences may constitute a sufficient change in circumstances to warrant modification of an existing custody arrangement ( see Matter of Luke v. Luke, 90 A.D.3d 1179, 1180–1181, 933 N.Y.S.2d 782 [2011];Matter of Spraker v. Watts, 41 A.D.3d 953, 954, 837 N.Y.S.2d 754 [2007];Matter of Pecore v. Pecore, 34 A.D.3d 1100, 1102, 824 N.Y.S.2d 690 [2006] ), particularly if such relocations negatively impact upon the child's education ( see Matter of Gasparro v. Edwards, 85 A.D.3d 1222, 1222–1223, 925 N.Y.S.2d 206 [2011];Matter of Siler v. Wright, 64 A.D.3d 926, 928, 882 N.Y.S.2d 574 [2009];Matter of Valenti v. Valenti, 57 A.D.3d 1131, 1133–1134, 869 N.Y.S.2d 266 [2008],lv. denied12 N.Y.3d 703, 876 N.Y.S.2d 704, 904 N.E.2d 841 [2009] ). Here, even crediting the mother's testimony regarding her reasons for moving, her attempts to find suitable housing in order to avoid a change in schools for the child and the child's positive progress while in her care, the record nonetheless makes clear that the child, who already was struggling in school and-by all accounts-benefits from structure and consistency, lost ground academically as a result of the successive moves. Accordingly, based upon our review of the record as a whole, we cannot say that Family Court abused its sound discretion in concluding that the father demonstrated the requisite change in circumstances.
We reach a similar conclusion with regard to Family Court's best interests analysis. Although the mother indeed had been the child's primary caregiver, upon due consideration of all the relevant factors, including each parent's past performance, relative fitness and ability to furnish and maintain a suitable and stable home for the child and to guide and provide for the child's emotional and intellectual development ( see Matter of Coley v. Sylva, 95 A.D.3d 1461, 1462, 944 N.Y.S.2d 356 [2012];Matter of Melissa WW. v. Conley XX., 88 A.D.3d 1199, 1200, 931 N.Y.S.2d 748 [2011],lv. denied18 N.Y.3d 803, 2012 WL 16993 [2012] ), we cannot say that Family Court's decision to award primary physical custody to the father lacks a sound and substantial basis in the record. Accordingly, Family Court's order is affirmed.
ORDERED that the order is affirmed, without costs.