Opinion
308 CAF 19-01626
03-26-2021
In the Matter of Frank MYERS, Jr., Petitioner-Appellant, v. Sara MYERS and Onondaga County Department of Children and Family Services, Respondents-Respondents.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (REBECCA L. KONST OF COUNSEL), FOR PETITIONER-APPELLANT. JOELLE E. ROTONDO, EAST SYRACUSE, ATTORNEY FOR THE CHILD.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (REBECCA L. KONST OF COUNSEL), FOR PETITIONER-APPELLANT.
JOELLE E. ROTONDO, EAST SYRACUSE, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., CARNI, LINDLEY, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the petition is reinstated and the matter is remitted to Family Court, Onondaga County, for further proceedings in accordance with the following memorandum: In this proceeding pursuant to Family Court Act article 6, petitioner father appeals from an order dismissing his petition to modify a prior stipulated order of custody on the ground that he failed to establish a change in circumstances. We agree with the father that Family Court's determination lacks a sound and substantial basis in the record (see generally Matter of Hermann v. Williams , 179 A.D.3d 1545, 1545, 118 N.Y.S.3d 877 [4th Dept. 2020] ). "A party seeking to modify an existing custody arrangement must demonstrate a change in circumstances sufficient to warrant an inquiry into whether a change in custody is in the best interests of the children" ( Matter of Peay v. Peay , 156 A.D.3d 1358, 1360, 67 N.Y.S.3d 751 [4th Dept. 2017] ; see Matter of Guillermo v. Agramonte , 137 A.D.3d 1767, 1768, 29 N.Y.S.3d 720 [4th Dept. 2016] ; Matter of Foster v. Foster , 128 A.D.3d 1381, 1381, 7 N.Y.S.3d 790 [4th Dept. 2015], lv denied 26 N.Y.3d 901, 2015 WL 5123425 [2015] ). In seeking to modify the stipulated custody order, the father was required to show "a change in circumstances ‘since the time of the stipulation’ " ( Matter of Maracle v. Deschamps , 124 A.D.3d 1392, 1392, 1 N.Y.S.3d 694 [4th Dept. 2015] ). Here, the father and respondent mother entered into the stipulated order shortly after the child's fifth birthday, before she would have entered kindergarten. At the hearing on the petition, the court received the child's third-grade school attendance records in evidence. Although we cannot discern the precise number of absences from our review of the appellate record, the court expressed that it was "concerned" with the number of absences up to that point in the school year, of which there were approximately 30. Thus, we conclude that the father established a change in circumstances sufficient to warrant an inquiry into whether a change in custody is in the best interests of the child because the child's school records demonstrate that she had excessive school absences in the third grade (cf. Matter of Audreanna VV. v. Nancy WW. , 158 A.D.3d 1007, 1009, 71 N.Y.S.3d 683 [3d Dept. 2018] ; Matter of Paul T. v. Ann-Marie T. , 75 A.D.3d 788, 790, 904 N.Y.S.2d 585 [3d Dept. 2010], lv denied 15 N.Y.3d 713, 2010 WL 4628635 [2010] ; Matter of Sullivan v. Sullivan , 40 A.D.3d 865, 866, 836 N.Y.S.2d 259 [2d Dept. 2007] ). Therefore, we reverse the order, reinstate the petition, and remit the matter to Family Court for a hearing on the best interests of the child (see Matter of Gelling v. McNabb , 126 A.D.3d 1487, 1488, 6 N.Y.S.3d 887 [4th Dept. 2015] ; see generally Fox v. Fox , 177 A.D.2d 209, 211-212, 582 N.Y.S.2d 863 [4th Dept. 1992] ).