State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 17, 2016 521795 

____________________________________

In the Matter of ANGELA N.,

Respondent,

v

MEMORANDUM AND ORDER

GUY O.,

Appellant.

(And Two Other Related Proceedings.)

____________________________________

Calendar Date: October 14, 2016

Before: McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

__________

Hug Law PLLC, Albany (Matthew C. Hug of counsel), for

appellant.

Alexandra G. Verrigni, Rexford, attorney for the children.

__________

Clark, J.

Appeal from an order of the Family Court of Saratoga County

(Hall, J.), entered October 2, 2015, which, among other things,

partially 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 a son and a daughter

(born in 1999 and 2001, respectively). By order entered on

February 3, 2014, upon consent, the parties had joint legal

custody of the daughter, the father had sole legal custody of the

son and primary physical custody of the children and the mother

had parenting time with the children every other weekend, one
-2- 521795 

month during the summer, certain school breaks and holidays, and

such other parenting time as the parties could agree. Shortly

after entry of the custody order, in March 2014 and April 2014,

the mother and the father filed cross petitions each alleging

that the other had violated certain terms of the prior custody

order. During the proceedings on these petitions, Family Court

granted the mother's motion for permission to retain a forensic

evaluation at her own expense and ordered, among other things,

that the children, both parties and their respective spouses be

evaluated by a particular psychologist (see Family Ct Act § 251

[a]). 

In December 2014, the mother filed a modification petition

alleging that there had been a change in circumstances warranting

modification of the prior order and seeking sole legal and

primary physical custody of the children. The father

subsequently retained his own psychologist to conduct an

independent forensic evaluation and to review the forensic

evaluation reports produced by the psychologist retained by the

mother.

Family Court conducted a Lincoln hearing, and, at the

subsequent hearing on the petitions, the mother presented the

testimony of the psychologist retained by the father and offered

into evidence the competing forensic evaluation reports. After

the mother rested, the father moved for dismissal of the mother's

petitions. Family Court granted the motion to the extent of

dismissing the mother's violation petition, but otherwise denied

the motion. The father called the mother as a witness and also

offered certain documents into evidence, including the daughter's

health records. Following completion of the hearing, Family

Court, in a bench decision, modified the prior order by awarding

the mother sole legal and primary physical custody of the

daughter, granting the father parenting time with the daughter

every third weekend of the month and certain other times and

altered the mother's parenting time with the son to the second

weekend of every month and other specified periods.1 From the

1 Family Court also dismissed the father's violation

petition.
-3- 521795 

order entered thereon, the father appeals.2

The father argues that a sound and substantial basis did

not exist in the record to award the mother sole legal and

primary physical custody of the daughter. As an initial matter,

the father does not challenge Family Court's determination, which

was unaccompanied by specific findings, that there was a change

in circumstances warranting a review of the issue of custody to

ensure the continued best interests of the children. In any

event, inasmuch as the evidence demonstrated that there was an

ongoing process of alienation by all family members, as well as

bad behavior that affected the children's relationships with each

other and their parents and that the parents were unable to coparent effectively, we agree that the requisite change in

circumstances was shown (see Matter of Matthew K. v Beth K., 130

AD3d 1272, 1273 [2015]; Matter of Graham v Morrow, 111 AD3d 1178,

1179 [2013]; Matter of Hayward v Thurmond, 85 AD3d 1260, 1261-

1262 [2011]). This threshold showing having been made, we thus

turn to the question of whether it was in the daughter's best

interests to award the mother sole legal and primary physical

custody of her. 

In determining what modification of an existing custody

order, if any, would best promote a child's interests, courts

consider, among other factors, the child's need for stability,

the parents' respective home environments, the length of the

existing custody arrangement, past parenting performances and

each parent's relative fitness, willingness to foster a positive

relationship with the other parent and ability to provide for the

child's intellectual and emotional development (see Matter of

Chris X. v Jeanette Y., 124 AD3d 1013, 1014 [2015]; Matter of

Clouse v Clouse, 110 AD3d 1181, 1183 [2013], lv denied 22 NY3d

858 [2014]; Matter of Hayward v Campbell, 104 AD3d 1000, 1001

[2013]). In addition, although "not an absolute, the stability

and companionship to be gained from keeping [siblings] together

2 Upon the father's motion, a Justice of this Court stayed

so much of the order as granted the mother sole legal and primary

physical custody of the daughter and put in place temporary

custody provisions pending determination of the appeal.
-4- 521795 

is an important factor . . . to consider" (Eschbach v Eschbach,

56 NY2d 167, 173 [1982]; see Matter of Ebert v Ebert, 38 NY2d

700, 704 [1976]; Obey v Degling, 37 NY2d 768, 771 [1975]; Matter

of Valenti v Valenti, 57 AD3d 1131, 1135 [2008], lv denied 12

NY3d 703 [2009]). Furthermore, where, as here, a change in

custody also effectively results in a relocation of the child,

courts consider whether relocation is in the child's best

interests (see Matter of Casarotti v Casarotti, 107 AD3d 1336,

1340 n 2 [2013], lv denied 22 NY3d 852 [2013]; Matter of Zwack v

Kosier, 61 AD3d 1020, 1022-1023 [2009], lv denied 13 NY3d 702

[2009]).

Here, given the complete breakdown in the parties'

relationship, we find that a sound and substantial basis exists

in the record to support Family Court's determination that joint

legal custody of the daughter was no longer workable (see Matter

of Virginia C. v Donald C., 114 AD3d 1032, 1033 [2014]; Matter of

Festa v Dempsey, 110 AD3d 1162, 1163 [2013]). However, Family

Court's determination to award the mother sole legal and primary

physical custody of the daughter, while continuing the father's

sole legal and primary physical custody of the son, is not

supported by a sound and substantial basis in the record. 

Preliminarily, the evidence did not demonstrate that it would be

in the children's best interests to have separate primary

residences. Neither of the psychologists recommended separation

of the siblings. In fact, the psychologist retained by the

father recommended against it, stating that awarding the mother

primary physical custody of only the daughter could result in the

son feeling "alienated and abandoned" by the mother and could

cause the daughter to act out in "dangerous" ways after being

uprooted from her routine and friends. She, however, did opine

that the children would benefit from having individualized and/or

separate parenting time with the mother so that she could focus

on repairing her relationship with each child.

In addition, the record reveals that, at the time of the

fact-finding hearing, the daughter had been recently discharged

from an outpatient treatment program for her increasing

depression, presentation of psychotic symptoms and history of

engaging in self-harm. The program records demonstrated that the

father and his spouse were actively involved and supportive of
-5- 521795 

the daughter throughout the program, while the mother had minimal

involvement. Further, although Family Court found that either

parent would "secure the appropriate ongoing treatment" for the

daughter, the mother did not present any evidence, aside from her

brief testimony that she had researched medical providers, to

demonstrate that she had identified appropriate doctors to

address the daughter's particular mental health issues or that

the medical providers that she had researched, if appropriate,

accepted the daughter's health insurance and were accepting new

patients. 

Moreover, Family Court's bench decision is completely

devoid of any discussion of the impact it would have on the

daughter to relocate from the father's residence in Saratoga

County to the mother's residence in Orange County, some 100 miles

away. The mother testified that the daughter had made friends in

the neighborhood where she lived, but that she did not have any

family in the immediate area. The mother also briefly stated

that she had researched nearby schools. Noticeably absent,

however, were any specific details regarding the schools that the

daughter could attend or whether the child's life would be

enhanced academically, emotionally or economically (see generally

Matter of Tropea v Tropea, 87 NY2d 727, 740-741 [1996]).

Considering the foregoing, giving particular weight to the

daughter's heightened need for stability, the potential for

damage caused by the relocation and our general preference for

keeping siblings together3 (see e.g. Matter of Hayward v

Thurmond, 85 AD3d at 1261; Matter of Robinson v Davis, 58 AD3d

1041, 1042 [2009]), we find that it is in the daughter's best

interests that the father have sole legal and primary physical

3 The children have an older half brother and a younger

half sister from the father's previous and current marriages. At

the time of the petition, the half brother and half sister

resided with the children in the father and stepmother's home. 

By all accounts, the daughter had, for the most part, positive

relationships with her stepmother, half brother and half sister.
-6- 521795 

custody of her.4 In light of our determination, we make several

adjustments to the mother's parenting time with each of the

children. The mother shall have parenting time with the daughter

on the third weekend of every month from Friday at 6:00 p.m.

until Sunday at 6:00 p.m.; during the five-day April break from

school each year; from July 20 through August 4 of each year; on

the Thanksgiving holiday in odd years, with the return of the

child occurring on the Sunday following Thanksgiving at 6:00

p.m.; and on the Christmas holiday in even years, with the return

of the child occurring on the Sunday following Christmas at 6:00

p.m. In addition, the mother shall have parenting time with the

son from August 5 through August 20 of each year. To the extent

not expressly altered herein, all other provisions of the October

2, 2015 Family Court order relating to the mother's parenting

time with the son shall remain in full force and effect.

McCarthy, J.P., Garry, Lynch and Devine, JJ., concur.

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

costs, by reversing so much thereof as awarded sole legal and

primary physical custody of the parties' daughter to petitioner;

respondent is awarded sole legal and primary physical custody of

the daughter and petitioner's parenting time is adjusted as set

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

ENTER:

Robert D. Mayberger

Clerk of the Court

4 While not determinative, we note that the attorney for

the children does not support Family Court's determination to

relocate the daughter and separate the children.