Opinion
908 CAF 14-01645.
10-02-2015
In the Matter of Jaimyce L. McCLINTON, Petitioner–Appellant, v. Barsun U. KIRKMAN, Respondent–Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (John M. Wesley of Counsel), for Petitioner–Appellant. Christopher E. Burke, Attorney for the Child, Syracuse.
Frank H. Hiscock Legal Aid Society, Syracuse (John M. Wesley of Counsel), for Petitioner–Appellant.Christopher E. Burke, Attorney for the Child, Syracuse.
PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.
Opinion
MEMORANDUM:Petitioner mother commenced this proceeding seeking, inter alia, to modify a prior order pursuant to which respondent father had sole custody of the parties' child. We agree with the mother that Family Court erred in granting the father's motion to dismiss the amended petition at the close of the mother's case.
“It is well established 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 ; see Matter of Moore v. Moore, 78 A.D.3d 1630, 1630, 910 N.Y.S.2d 803, lv. denied 16 N.Y.3d 704, 2011 WL 500900 ). “Where, as here, ‘a respondent moves to dismiss a modification proceeding at the conclusion of the petitioner's proof, the court must accept as true the petitioner's proof and afford the petitioner every favorable inference that reasonably could be drawn therefrom’ ” (Matter of Walters v. Francisco, 63 A.D.3d 1610, 1611, 881 N.Y.S.2d 253 ; see Matter of Gelster v. Burns, 122 A.D.3d 1294, 1295, 996 N.Y.S.2d 438, lv. denied 24 N.Y.3d 915, 2015 WL 733613 ). Here, accepting the mother's proof as true and affording her the benefit of every favorable inference, we conclude that she “presented sufficient prima facie evidence of a change of circumstances [that] might warrant modification of custody in the best interests of the child” (Matter of James R.O. v. Cond–Arnold, 99 A.D.3d 801, 801–802, 952 N.Y.S.2d 249 ; see Matter of Maher v. Maher, 1 A.D.3d 987, 988, 767 N.Y.S.2d 179 ).
First, the mother established through her testimony and documentary exhibits that, for a significant period of time, the child resided with the paternal grandmother in Syracuse while the father “live[d] out of Syracuse.” Such evidence establishes that the father “abdicated [his] role as the child's primary caregiver, at least temporarily, by leaving the child with the grandmother” (Matter of Hetherton v. Ogden, 79 A.D.3d 1172, 1173, 912 N.Y.S.2d 163 ; see Matter of Blasdell v. DeGolier, 303 A.D.2d 1045, 1047, 756 N.Y.S.2d 695 ; cf. Matter of Williams v. Williams, 188 A.D.2d 906, 908, 591 N.Y.S.2d 872 ). Second, the mother established that her “work schedule had changed substantially since the entry of the prior custody order” (Matter of Porter v. Nesbitt, 74 A.D.3d 1786, 1787, 902 N.Y.S.2d 760 ; cf. Matter of Gross v. Gross, 119 A.D.3d 1453, 1453–1454, 988 N.Y.S.2d 836 ), inasmuch as her status in the Army Reserves had changed to inactive and thus she would not be called to active duty training or deployed.
Based on the foregoing, we conclude that the mother “met [her] burden of demonstrating a sufficient change in circumstances to require consideration of the welfare of the child[ ]” (Maher, 1 A.D.3d at 988, 767 N.Y.S.2d 179 ). Because the court did not proceed with a full hearing, we do not have an adequate record upon which to make our own determination in the interest of judicial economy (cf. id. ). We therefore reinstate the amended petition and remit the matter to Family Court for a hearing and determination of custody based on the best interests of the child before a different judge, and we agree with the mother that she is entitled to a ruling on merits of her motion for discovery sanctions.It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the amended petition is reinstated, and the matter is remitted to Family Court, Onondaga County, for further proceedings.