State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 7, 2016 519757 

____________________________________

In the Matter of BILLIE JO

ROHDE,

Appellant,

v MEMORANDUM AND ORDER

RAYMOND W. ROHDE JR.,

Respondent.

(And Two Other Related Proceedings.)

____________________________________

Calendar Date: November 17, 2015

Before: Lahtinen, J.P., Garry, Rose, Lynch and Devine, JJ.

__________

Randolph V. Kruman, Cortland, for appellant.

Kristine M. Shaw, Ithaca, for respondent.

Margaret McCarthy, Ithaca, attorney for the children.

__________

Lynch, J.

Appeal from an order of the Family Court of Chemung County

(Rich Jr., J.), entered August 22, 2014, which, among other

things, in three proceedings pursuant to Family Ct Act article 6,

modified a prior order of custody and visitation.

Petitioner (hereinafter the mother) and respondent

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

1998 and 2001). In September 2013, Family Court (Brockway, J.)

issued an order granting joint legal custody with physical

custody to the father and parenting time to the mother. 

Specifically, with respect to the younger child, the mother was
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granted parenting time every other weekend, with overnights

subject to the child's approval. With respect to the older

child, the court ordered that parenting time was to occur subject

to that child's approval. In February 2014, the mother filed an

enforcement petition alleging that the father violated the

September 2013 order. After temporary orders were issued in

March 2014 and May 2014 limiting the mother's contact with the

children to telephone calls, the mother filed two more

enforcement petitions alleging that each of these orders was

violated. After a Lincoln hearing and a fact-finding hearing,

Family Court (Rich Jr., J.) dismissed each of the petitions, and

the mother's parenting time was suspended.1 The mother now

appeals. 

Initially, inasmuch as the mother did not object after the

September 2013 custodial order was modified twice during the

pendency of the fact-finding hearing, we find that the mother's

argument that Family Court deprived her of due process by

suspending her parenting time is not preserved for our review

(see Matter of Tisdale v Anderson, 100 AD3d 1517, 1517 [2012];

Matter of Castillo v Luke, 63 AD3d 1222, 1223 [2009]; Matter of

Young v Collins, 37 AD3d 1014, 1016 [2007]). Moreover,

notwithstanding her initial petition, the mother also requested,

at the initial appearance and while represented by counsel, a

"change in custody" based on the father's conduct following the

entry of the September 2013 order. Later, the attorney for the

children sought confirmation, without dispute, that the mother

sought to convert the violation petition to one for modification

1 At the commencement of the fact-finding hearing, Family

Court erred to the extent that it expressly revealed the

substance of the childrens' communications during the Lincoln

hearing (see Matter of Lawrence v Kowatch, 119 AD3d 1004, 1006 n

1 [2014]). We must reiterate that, however well intended the

trial court may have been, protecting the child's right to

confidentiality, as promised, "remains a paramount obligation" in

Family Ct Act article 6 proceedings (Matter of Julie E. v David

E., 124 AD3d 934, 937-938 [2015]; see Matter of Susan LL. v

Victor LL., 88 AD3d 1116, 1119 n 4 [2011]; Matter of Hrusovsky v

Benjamin, 274 AD2d 674, 676 [2000]). 
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of the prior custody order. Under the circumstances, therefore,

we have no doubt that the mother was on notice that custody was

at issue in these proceedings (see Matter of Vanita UU. v

Mahender VV., 130 AD3d 1161, 1163 [2015], lv dismissed and denied

26 NY3d 998 [2015]; Matter of Kowatch v Johnson, 68 AD3d 1493,

1495 [2009], lv denied 14 NY3d 704 [2010]). 

Turning to the merits, a parent seeking to modify an

existing custody order must "demonstrate[] a change in

circumstances that warrants an inquiry into the best interests of

the child[ren]" (Matter of Schlegel v Kropf, 132 AD3d 1181, 1182

[2015]; see Matter of Vanita UU. v Mahender VV., 130 AD3d at

1163). To determine whether modification is in the children's

best interests, we consider such factors as "the relative

fitness, stability, past performance, and home environment of the

parents, as well as their ability to guide and nurture the

children and foster a relationship with the other parent" (Matter

of Shokralla v Banks, 130 AD3d 1263, 1264 [2015] [internal

quotation marks and citation omitted]). The wishes of older,

more mature children, while not dispositive, may support a

finding of a change in circumstances and may be considered when

determining their best interests (see Matter of Jones v Moore,

129 AD3d 1400, 1401 [2015]; Matter of Colona v Colona, 125 AD3d

1123, 1126 [2015]). 

Here, although Family Court did not make an express finding

with regard to change in circumstances, we have the authority to

independently review the record to determine whether such

circumstances existed (see Matter of Clouse v Clouse, 110 AD3d

1181, 1183 [2013], lv denied 22 NY3d 858 [2014]). In our view,

and as noted by Family Court, the "extraordinarily damaged

relationship" between the mother and the children was a

sufficient change in circumstances to warrant consideration of

the children's best interests. While there was conflicting

testimony before the court with regard to the behavior of the

parents and the father's girlfriend towards each other in front

of the children, these credibility issues were for the court to

resolve (see Matter of Colona v Colona, 125 AD3d at 1126; Matter

of Bond v MacLeod, 83 AD3d 1304, 1306 [2011]). Having found that

there was a sufficient change in circumstances, we further find

that, based on the evidence and giving the requisite deference to
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Family Court's credibility findings, the record provides a sound

and substantial basis for its determination that suspension of

the visitation order was in the childrens' best interests (see

Matter of Colona v Colona, 125 AD3d at 1126). 

Lahtinen, J.P., Garry, Rose and Devine, JJ., concur.

ORDERED that the order is affirmed, without costs. 

ENTER:

Robert D. Mayberger

Clerk of the Court