SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

12 

CAF 15-00313 

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

 

IN THE MATTER OF MARIVI DEJESUS, 

PETITIONER-APPELLANT, 

 

V MEMORANDUM AND ORDER

STEVEN A. GONZALEZ, RESPONDENT-RESPONDENT.

------------------------------------------

MARYBETH D. BARNET, ESQ., ATTORNEY FOR THE

CHILD, APPELLANT.

 

DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR

PETITIONER-APPELLANT. 

MARYBETH D. BARNET, ATTORNEY FOR THE CHILD, CANANDAIGUA, APPELLANT PRO

SE. 

SUSAN GRAY JONES, CANANDAIGUA, FOR RESPONDENT-RESPONDENT.

KIMBERLY WHITE WEISBECK, ATTORNEY FOR THE CHILD, ROCHESTER.

 

Appeals from an order of the Family Court, Ontario County

(Maurice E. Strobridge, J.H.O.), entered December 29, 2014 in a

proceeding pursuant to Family Court Act article 6. The order, among

other things, directed that the parties shall continue to share joint

custody of the subject children. 

It is hereby ORDERED that the order so appealed from is

unanimously reversed on the law and facts without costs, the petition

is granted, and the matter is remitted to Family Court, Ontario

County, for further proceedings in accordance with the following

memorandum: In this proceeding pursuant to Family Court Act article

6, petitioner mother and the Attorney for the Child (AFC) for the

parties’ daughter appeal from an order that denied the mother’s

petition seeking to modify a prior consent order. Pursuant to the

prior order, the parties had joint legal custody of their son and

daughter, with primary physical custody to respondent father, and by

the instant petition the mother sought sole legal and primary physical

custody of the children based on the father’s use of inappropriate

physical discipline while the children were in his care. Although

Family Court determined that the mother failed to establish a

sufficient change in circumstances warranting an inquiry into the best

interests of the children, it nevertheless determined based on the

evidence presented at the hearing that it was in the children’s best

interests to continue joint legal custody and primary physical
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CAF 15-00313 

placement with the father.

Although an existing order of custody and visitation that is

based on the consent of the parties is entitled to less weight than a

disposition after a plenary trial, the court may not modify such an

order unless a sufficient change in circumstances since the time of

the consent order has been established, “ ‘and then only where a

modification would be in the best interests of the child[ren]’ ”

(Matter of Pecore v Blodgett, 111 AD3d 1405, 1405, lv denied 22 NY3d

864).

We agree with the mother and the AFC that the court erred in

determining that the mother failed to establish a sufficient change in

circumstances to warrant an inquiry into the best interests of the

children. The record establishes that the father telephoned the

mother to ask that she pick up the parties’ three-year-old daughter

from his residence in Pennsylvania because he was unable to handle her

alleged misbehavior. Upon retrieving the child, the mother observed

and photographed extensive bruising on the child’s body, as well as

scrapes on her knees, which the father later attributed to the child’s

increasingly serious tantrums that began while she was in his care. 

The daughter’s injuries were observed by a Child Protective Services

(CPS) investigator, and the daughter disclosed to the investigator

that the father had struck her with a belt and that she sustained the

scrapes on her knees from kneeling on a “cat scratcher” as a form of

punishment. The son’s statements to the investigator corroborated the

daughter’s account of the corporal punishment. In addition, the

father admitted that he once spanked the daughter with a belt and made

her kneel on the “cat scratcher.” Although the father testified that

each of those types of physical discipline was a one-time occurrence,

the records of the daughter’s medical examination documenting that the

daughter had “multiple bruises all over her body in different stages

of healing,” as well as the son’s statements with respect to the

frequency of the father’s physical discipline, support the finding

that the father repeatedly inflicted excessive corporal punishment on

the daughter. We thus conclude that there was a sufficient change in

circumstances to warrant an inquiry into the best interests of the

children (see Matter of Bartlett v Jackson, 47 AD3d 1076, 1077-1078,

lv denied 10 NY3d 707; cf. Matter of Eller v Eller, 126 AD3d 1242,

1242-1243; see generally Matter of Terry I. v Barbara H., 69 AD3d

1146, 1147-1148). Furthermore, even crediting the father’s assertion

that the daughter’s injuries resulted from tantrums, we conclude that

there was a sufficient change in circumstances inasmuch as the father

was admittedly unable to handle the daughter’s behavioral issues,

resorted to inappropriate physical discipline to punish the daughter

for her alleged misbehavior, and requested that the mother remove the

daughter from his care (see Matter of Burrell v Burrell, 101 AD3d

1193, 1194; Matter of Robinson v Cleveland, 42 AD3d 708, 709).

We further agree with the mother and the AFC that the court’s

custody determination lacks a sound and substantial basis in the

record (see Gilman v Gilman, 128 AD3d 1387, 1388; see generally Fox v

Fox, 177 AD2d 209, 211-212). Upon our review of the relevant factors

(see generally Eschbach v Eschbach, 56 NY2d 167, 171-174; Fox, 177
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CAF 15-00313 

AD2d at 210), “including an evaluation of the character and relative

parental fitness of the parties” (Matter of Amy L.W. v Brendan K.H.,

37 AD3d 1060, 1061), we conclude that it is in the best interests of

the children to award the mother sole legal and primary physical

custody. Here, the record establishes that the father resorted to

excessive physical discipline of the daughter, which resulted in an

indicated CPS report (see Gilman, 128 AD3d at 1388), and we conclude

that the court erred in discounting that report in favor of an

“unfounded” report by a Pennsylvania investigator who had closed his

case because the children had been removed to New York. The record

also establishes that the father struck the son with a belt as

punishment, and exposed him to a home environment wherein he witnessed

the excessive corporal punishment directed at the daughter (see

generally Matter of Demers v McLear, 130 AD3d 1259, 1261). Contrary

to the court’s determination, we conclude that the record establishes

that the mother’s involvement with the son’s schooling was not

significantly different from that of the father. In addition, the

son’s wish to reside with the father is not determinative in light of

his young age (see Matter of Holtz v Weaver, 94 AD3d 1557, 1558).

The court’s finding that the daughter was in need of

psychological intervention and that the father had made proper

attempts to improve the daughter’s behavior in that regard likewise is

unsupported by the record. Rather, the record establishes that the

father’s parenting skills are inadequate with respect to his ability

to provide for the daughter’s psychological and emotional needs

because, despite his testimony that the daughter’s behavior

deteriorated while in his care, he never sought assistance from, e.g.,

a child psychologist or the daughter’s pediatrician with respect to

the tantrums, and instead resorted to inappropriate physical

discipline and requested that the mother remove the daughter from his

care (see Gilman, 128 AD3d at 1388).

We note in addition that the court improperly focused on the

mother’s past sexual behavior and relationships despite the absence of

any showing that such conduct may adversely affect the welfare of the

children (see Sitts v Sitts, 74 AD3d 1722, 1723, lv dismissed 15 NY3d

833, lv denied 18 NY3d 801; Matter of Hess v Pedersen, 211 AD2d 1000,

1001). To the extent that the court found that the mother’s

relationship and pregnancy affected the children’s living arrangements

at the mother’s residence, we conclude that those conditions were not

significantly different from those at the father’s residence. 

We thus reverse the order and grant the petition by awarding the

mother sole legal and primary physical custody of the children, with

visitation to the father, and we remit the matter to Family Court to

fashion an appropriate visitation schedule.

Entered: February 11, 2016 Frances E. Cafarell

Clerk of the Court