State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 31, 2016 521192 

________________________________

In the Matter of AMBER KNOX,

Respondent,

v MEMORANDUM AND ORDER

BRET S. ROMANO,

Appellant.

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Calendar Date: February 9, 2016

Before: Peters, P.J., McCarthy, Egan Jr. and Lynch, JJ.

__________

Susan Patnode, Rural Law Center of New York, Castleton

(Cynthia Feathers of counsel), for appellant.

Rosemarie Richards, Gilbertsville, for respondent.

Christopher Hammond, Cooperstown, attorney for the

children.

__________

Peters, P.J.

Appeal from an order of the Family Court of Otsego County

(Burns, J.), entered April 30, 2015, 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 and

visitation.

Petitioner (hereinafter the mother) and respondent

(hereinafter the father) are the parents of two children (born in

2007 and 2008). Pursuant to a stipulated order entered in

December 2009, the parties shared joint legal custody of the

children, with primary physical custody to the mother. The

father was provided with overnight parenting time every Tuesday
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evening to Wednesday morning, every Thursday evening to Friday

morning, and on alternate weekends from Saturday morning to

Sunday evening. In July 2014, the mother commenced this

proceeding seeking sole legal custody of the children and a

reduction in the father's visitation. Following a fact-finding

hearing, Family Court issued an order which, among other things,

granted the mother sole legal custody and reduced the father's

parenting time by eliminating his Thursday to Friday weekly

overnight visits. The father appeals. 

"A parent seeking to modify an existing custody order first

must demonstrate that a change in circumstances has occurred

since the entry thereof that is sufficient to warrant the court

undertaking a best interests analysis" (Matter of Menhennett v

Bixby, 132 AD3d 1177, 1179 [2015] [citations omitted]; see Fermon

v Fermon, 135 AD3d 1045, 1046 [2016]; Matter of Hrostowski v

Micha, 132 AD3d 1103, 1104 [2015]). Here, Family Court's

determination that the parties are no longer capable of

communicating effectively and amicably with one another for the

sake of their children is grounded upon adequate record support. 

The parties' conceded inability to engage in cooperative

decision-making demonstrated that joint legal custody was no

longer workable, thereby triggering an inquiry into what

custodial arrangement would promote the best interests of the

children (see Matter of Sonley v Sonley, 115 AD3d 1071, 1072

[2014]; Matter of Williams v Williams, 66 AD3d 1149, 1150-1151

[2009]; Matter of Omahen v Omahen, 64 AD3d 975, 976 [2009]).

Factors relevant to determining the children's best

interests include "maintaining stability in the children's lives,

the quality of respective home environments, the length of time

the present custody arrangement has been in place, each parent's

past performance, relative fitness and ability to provide for and

guide the children's intellectual and emotional development, and

the effect the award of custody to one parent would have on the

children's relationship with the other parent" (Matter of Melody

M. v Robert M., 103 AD3d 932, 933 [2013] [internal quotation

marks and citations omitted], lv denied 21 NY3d 859 [2013]; see

Matter of Zahuranec v Zahuranec, 132 AD3d 1175, 1176 [2015]). 

Here, while it is clear that both parties are loving and devoted

parents, the mother is more able to provide the children with
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greater stability. She is steadily employed and maintains a

structured environment for the children with her fiancé. The

father, who works seasonally as a self-employed umpire, does not

have a driver's license due to his various driving while

intoxicated convictions and relies on his mother for

transportation. Further, the father exhibited questionable

judgment by both traveling in a vehicle with the children without

placing them in their car seats and permitting the children to

remain atop a roof while he was doing repairs. Taken as a whole,

the record provides the requisite sound and substantial basis for

Family Court's determination that it was in the best interests of

the children to award sole legal custody to the mother (see

Matter of Melody M. v Robert M., 103 AD3d at 933-934; Matter of

Spiewak v Ackerman, 88 AD3d 1191, 1192-1193 [2011]; Matter of

Jennifer G. v Benjamin H., 84 AD3d 1433, 1434 [2011]).

Turning to visitation, we agree with Family Court that a

change in circumstances has been demonstrated and that a

modification of the then-existing visitation schedule is

necessary to ensure the children's best interests (see Matter of

Carr v Stebbins, 135 AD3d 1013, 1014 [2016]; Nolan v Nolan, 104

AD3d 1102, 1105 [2013]). The mother described the children as

being anxious and confused regarding the midweek visitation

schedule and stated that they constantly questioned who was

picking them up at school each day. She also testified that the

older child had recently enrolled in certain extracurricular

activities and expressed concern about relying on the father to

facilitate the child's attendance. As Family Court found, the

current schedule – which called for the children to alternate

between the parents' homes on a daily basis throughout the school

week – had a negative impact upon the children's emotional state,

and we agree that the children's best interests are served by

eliminating the father's weekly Thursday to Friday overnight

visits so as to provide more structure and consistency. 

However, Family Court did not articulate a reason as to why

an overall reduction in the father's parenting time was in the

children's best interests (see Matter of Jennifer G. v Benjamin

H., 84 AD3d at 1434; Matter of Laware v Baldwin, 42 AD3d 696, 697

[2007]), and we do not find a sound and substantial basis in the

record that would support such a finding. Notwithstanding his
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shortcomings, the father has faithfully attended his visits with

the children, has developed a significant relationship with them

and has been a consistent figure in their young lives. The

mother freely acknowledged that the children enjoy their time

with the father and, although certainly not dispositive, the

attorney for the children both at the hearing and on this appeal

took the position that the father's parenting time should not be

reduced. Inasmuch as our authority in custody and visitation

matters is as broad as that of Family Court and the record is

sufficiently complete to permit an informed modification of the

visitation provisions (see Bowman v Engelhart, 112 AD3d 1187,

1189 [2013]; Matter of Burton v Barrett, 104 AD3d 1084, 1086

[2013]), we find that the children's interests will be best

served by increasing the father's alternate weekend parenting

time so as to provide roughly the same number of total hours of

visitation that he received under the prior order. Therefore,

commencing 30 days from the date of this decision, the father's

alternating weekend parenting time will be from Friday at the

close of school, or from 3:00 p.m. if school is not in session,

until Monday morning at the commencement of school, or until 9:00

a.m. if school is not in session. The father shall be

responsible for the children's transportation to and from such

visits. 

McCarthy, Egan Jr. and Lynch, JJ., concur.

ORDERED that the order is modified, on the law, without

costs, by awarding respondent additional parenting time as set

forth in this Court's decision, and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court