Opinion
2013-04-26
In the Matter of Daniel O'CONNELL, Petitioner–Respondent, v. Mary O'CONNELL, Respondent–Appellant.
Flaherty & Shea, Buffalo (Michael J. Flaherty of Counsel), for Respondent–Appellant. Lipsitz Green Scime Cambria LLP, Buffalo (Denis A. Scinta of Counsel), for Petitioner–Respondent.
Flaherty & Shea, Buffalo (Michael J. Flaherty of Counsel), for Respondent–Appellant. Lipsitz Green Scime Cambria LLP, Buffalo (Denis A. Scinta of Counsel), for Petitioner–Respondent.
Rebecca J. Talmud, Attorney for the Children, Williamsville, for Danielle O. And Kaitlyn O.
PRESENT: CENTRA, J.P., FAHEY, CARNI, LINDLEY, AND WHALEN, JJ.
MEMORANDUM:
Petitioner father commenced this proceeding seeking an order modifying the parties' existing custody arrangement with respect to their children, Danielle and Kaitlyn, who were 15 and 13 years old, respectively, at the time of the hearing. Pursuant to their judgment of divorce, which incorporated the terms of their oral stipulation, the parties shared joint legal custody of their children, but respondent mother had primary physical custody and the father had unsupervised visitation. After a hearing, Family Court issued an order directing, inter alia, that the mother maintain primary physical custody of Danielle and that the father have primary physical custody of Kaitlyn. The mother appeals, and we affirm.
Contrary to the mother's contention, the father met his burden of establishing “ ‘a change in circumstances sufficient to warrant an inquiry into whether the best interests of the [children] warranted a change in custody’ ” ( Matter of Dingeldey v. Dingeldey, 93 A.D.3d 1325, 1326, 940 N.Y.S.2d 760;see Matter of York v. Zullich, 89 A.D.3d 1447, 1448, 932 N.Y.S.2d 637;Matter of Hughes v. Davis, 68 A.D.3d 1674, 1675, 890 N.Y.S.2d 874;Matter of Perry v. Korman, 63 A.D.3d 1564, 1565, 880 N.Y.S.2d 815). Here, the mother's testimony at the hearing established that her relationship with Kaitlyn had become strained due to the mother's inability to communicate effectively with Kaitlyn. The court, after considering that testimony, as well as the mother's demeanor, properly concluded that there was a change in circumstances concerning both children inasmuch as the mother had become less fit than the father with respect to her ability to effectively communicate with the children ( see Matter of Dorsa v. Dorsa, 90 A.D.3d 1046, 1046–1047, 935 N.Y.S.2d 343;see also Matter of Burch v. Willard, 57 A.D.3d 1272, 1273, 870 N.Y.S.2d 141;see generally Eschbach v. Eschbach, 56 N.Y.2d 167, 174, 451 N.Y.S.2d 658, 436 N.E.2d 1260).
With respect to the best interests analysis, we note that “ ‘[a] change of custody should be made only if the totality of the circumstanceswarrants a change that is in the best interests of the child’ ... ‘Among the factors to be considered are the quality of the home environment and the parental guidance the custodial parent provides for the child ..., the ability of each parent to provide for the child's emotional and intellectual development ..., the financial status and ability of each parent to provide for the child ..., the relative fitness of the respective parents, and the length of time the present custody arrangement has been in effect’ ” ( Matter of Maher v. Maher, 1 A.D.3d 987, 988–989, 767 N.Y.S.2d 179;see Fox v. Fox, 177 A.D.2d 209, 210, 582 N.Y.S.2d 863). “In determining whether the custodial parent can continue to provide for the child's various needs, the court must be cognizant of the individual needs of each child. It is, of course, entirely possible that a circumstance such as a total breakdown in communicationbetween a parent and child that would require a change in custody would be applicable only as to the best interests of one of several children” ( Eschbach, 56 N.Y.2d at 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260), although “sibling relationships should not be disrupted ‘unless there is some overwhelming need to do so’ ” ( White v. White, 209 A.D.2d 949, 950, 619 N.Y.S.2d 428,lv. dismissed85 N.Y.2d 924, 627 N.Y.S.2d 324, 650 N.E.2d 1326;see Maher, 1 A.D.3d at 989, 767 N.Y.S.2d 179). “[A] court's determination regarding custody and visitation issues, 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 Marino v. Marino, 90 A.D.3d 1694, 1695, 935 N.Y.S.2d 818 [internal quotation marks omitted]; see Matter of Green v. Mitchell, 266 A.D.2d 884, 884, 697 N.Y.S.2d 899).
Here, the parties vary only in their ability “to provide for the child's emotional and intellectual development” ( Maher, 1 A.D.3d at 989, 767 N.Y.S.2d 179), and the court implicitly concluded that the mother was the less fit parent with respect to that factor ( see Eschbach, 56 N.Y.2d at 174, 451 N.Y.S.2d 658, 436 N.E.2d 1260). The court determined that it was in Kaitlyn's best interests to reside with the father because of the stress caused by the mother's interactions with her, but that it was in Danielle's best interests to continue residing with the mother because she had learned to cope with her mother's personality. “Although the separation of siblings is unfortunate” ( Maher, 1 A.D.3d at 989, 767 N.Y.S.2d 179), here the children have different needs. Indeed, this “is one of those rare cases where the breakdown in communication between the parent and child that would require a change of custody is ‘applicable only as to the best interests of one of [two] children’ ” ( Gary D.B. v. Elizabeth C.B., 281 A.D.2d 969, 971, 722 N.Y.S.2d 323, quoting Eschbach, 56 N.Y.2d at 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260). Additionally, the children attend the same school and, pursuant to the visitation schedule, the children will spend time together at each party's house during the week and every weekend. The record here supports the court's determination that it is in Kaitlyn's best interests to reside with the father because of the antagonistic relationship between Kaitlyn and the mother, despite her separation from Danielle ( see Dorsa, 90 A.D.3d at 1047, 935 N.Y.S.2d 343;Maher, 1 A.D.3d at 989, 767 N.Y.S.2d 179;Gary D.B., 281 A.D.2d at 971, 722 N.Y.S.2d 323;cf. White, 209 A.D.2d at 951, 619 N.Y.S.2d 428;Fox, 177 A.D.2d at 213, 582 N.Y.S.2d 863).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.