SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

752 

CA 15-01359 

PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, TROUTMAN, AND SCUDDER, JJ. 

 

TAMRA J. WERNER, FORMERLY KNOWN AS TAMRA J. KENNEY, 

PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

KRAIG H. KENNEY, DEFENDANT-RESPONDENT. 

 

INCLIMA LAW FIRM, PLLC, ROCHESTER (CHARLES P. INCLIMA OF COUNSEL), FOR

PLAINTIFF-APPELLANT. 

JOAN de R. O’BYRNE, ROCHESTER, FOR DEFENDANT-RESPONDENT.

PAUL B. WATKINS, ATTORNEY FOR THE CHILD, FAIRPORT. 

 

Appeal from an order of the Supreme Court, Ontario County

(William F. Kocher, A.J.), entered December 23, 2014. The order,

among other things, awarded defendant sole custody of the parties’

child. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: In this post-divorce modification and enforcement

action, plaintiff mother appeals from an order that modified the

judgment of divorce, which incorporated the custody provisions of the

parties’ Separation and Property Settlement and “Opting Out”

Agreement, by awarding sole custody of the parties’ child to defendant

father, with visitation to the mother. We affirm. Contrary to the

mother’s contention, we conclude that the father met his burden of

establishing a change in circumstances “ ‘since the time of the

stipulation’ ” sufficient to warrant an inquiry into whether a change

in custody is in the child’s best interests (Matter of Maracle v

Deschamps, 124 AD3d 1392, 1392; see Matter of Tuttle v Tuttle, 137

AD3d 1725, 1725). Here, the record supports Supreme Court’s

determination that the continued deterioration of the parties’

relationship and their inability to coparent constitutes the requisite

change in circumstances (see Matter of York v Zullich, 89 AD3d 1447,

1448; Matter of Ingersoll v Platt, 72 AD3d 1560, 1561). 

Contrary to the mother’s further contention, we conclude that the

court’s decision properly set forth the grounds for its determination

and that the determination is supported by a sound and substantial

basis in the record (see Matter of Saletta v Vecere, 137 AD3d 1685,

1686). “It is well settled . . . that [a] concerted effort by one
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CA 15-01359 

parent to interfere with the other parent’s contact with the child is

so inimical to the best interests of the child . . . as to, per se,

raise a strong probability that [the interfering parent] is unfit to

act as custodial parent” (Matter of Marino v Marino, 90 AD3d 1694,

1695 [internal quotation marks omitted]). Here, the record supports

the court’s conclusions that the mother interfered with the father’s

relationship with the child and that her unfounded allegations of

domestic violence against the father, some of which were made in the

presence of the child, render her unfit to be a custodial parent (see

Matter of Perez v Sepulveda, 21 AD3d 558, 559). “Although the court

must consider the effects of domestic violence in determining the best

interests of the child[ ],” the mother failed to prove her allegations

by a preponderance of the evidence (Matter of Miller v Jantzi, 118

AD3d 1363, 1363-1364). We therefore see no reason to disturb the

court’s custody determination (see Matter of Lewis R.E. v Deloris

A.E., 37 AD3d 1092, 1093). 

We agree with the mother that the court’s delay in making a

determination was unreasonable, but reversal or remittal in this case

is not required inasmuch as the court’s decision is supported by the

record (see Hanway v Hanway, 208 AD2d 499, 500). 

We have considered the mother’s remaining contentions and

conclude that they are without merit. 

Entered: September 30, 2016 Frances E. Cafarell

Clerk of the Court