State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 7, 2016 521849 

_________________________________

In the Matter of CHRISTOPHER

ROCKHILL,

AppellantRespondent,

v

MEMORANDUM AND ORDER

CHRISTINA KUNZMAN,

RespondentAppellant.

(And Another Related Proceeding.)

_________________________________

Calendar Date: May 31, 2016

Before: Lahtinen, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.

__________

Lauren S. Cohen, Johnson City, for appellant-respondent.

Levene Gouldin & Thompson, LLP, Binghamton (Bruno

Colapietro of counsel), for respondent-appellant.

Christine A. McCue, Central Bridge, attorney for the child.

__________

Devine, J.

Cross appeal from an order of the Family Court of Broome

County (Connerton, J.), entered January 29, 2015, which, among

other things, dismissed petitioner's application, in a proceeding

pursuant to Family Ct Act article 6, to modify a prior order of

custody.

Petitioner (hereinafter the father) and respondent

(hereinafter the mother) are the divorced parents of a daughter
-2- 521849 

(born in 2012). Pursuant to their 2013 judgment of divorce, the

parties were granted joint legal custody of the child and the

mother was granted primary physical placement. The father, in

turn, was entitled to parenting time on Wednesday evenings,

alternate weekends and holidays, as well as any agreed-to

additional time. 

The parties filed petitions seeking modification of the

custodial arrangement in 2014 and, following a hearing, Family

Court issued an order granting the mother sole legal custody and

continuing primary physical placement. Family Court also

modified the visitation provisions of the custodial arrangement

in various respects, by allowing the parties to select two weeks

of uninterrupted parenting time for vacations every year and

granting the father two months of parenting time in July and

August, with the mother entitled to parenting time on alternate

weekends during that period. The father appeals and the mother

cross-appeals from the order. 

Family Court determined that "a change in circumstances

ha[d] occurred that warrants an inquiry into the child[]'s best

interests" (Matter of Schmitz v Schmitz, 139 AD3d 1123, 1123

[2016]; see Matter of Tara AA. v Matthew BB., 139 AD3d 1136, 1137

[2016]), and the parties do not dispute that their relationship

deteriorated after the entry of the 2013 divorce judgment and

that their "inability to engage in cooperative decision-making

demonstrated that joint legal custody was no longer workable"

(Matter of Knox v Romano, 137 AD3d 1530, 1531 [2016]; see Nolan v

Nolan, 104 AD3d 1102, 1104 [2013]). An inquiry into the best

interests of the child was accordingly triggered, which "involves

the examination of several factors, including 'the relative

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

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

child[] and foster a relationship with the other parent'" (Matter

of Blagg v Downey, 132 AD3d 1078, 1079 [2015], quoting Matter of

Parchinsky v Parchinsky, 114 AD3d 1040, 1041 [2014]; accord

Matter of Barrows v Sherwood, 138 AD3d 1195, 1196 [2016]).

The parties have a contentious relationship with each

other, but also enjoy a loving relationship with the child. The

child has primarily lived with the mother since birth, however,
-3- 521849 

and Family Court declined to credit the father's testimony that

the mother has improperly cared for the child or that the child

would benefit if she were primarily in the father's care (see

Friederwitzer v Friederwitzer, 55 NY2d 89, 94 [1982]; Matter of

Roefs v Roefs, 101 AD3d 1185, 1186 [2012]). Indeed, the father

has acted in a manner harmful to the child's interests, fueling

the distrust and conflict between the parties by, among other

things, documenting all of his interactions with the mother in a

frighteningly detailed manner and needling the mother by having

the child examined at walk-in clinics for minor issues that could

be addressed by the child's pediatrician. Therefore, according

deference to the credibility determinations of Family Court, we

find that a sound and substantial basis in the record supports

its award of sole legal custody and primary physical placement to

the mother (see Matter of Poremba v Poremba, 93 AD3d 1115, 1116-

1117 [2012]; Matter of Burola v Meek, 64 AD3d 962, 964-965

[2009]). 

We are persuaded by the argument of the mother, as well as

the attorney for the child, that the mother should be awarded

additional parenting time during the summer months. As it

stands, the mother will be deprived of access to the child over

the summer for more than a week at a time and, as the attorney

for the child notes, the best interests of this very young child

are not furthered by such a long gap. The father, who sees the

child every Wednesday evening for the rest of the year except for

the two weeks of uninterrupted vacation with the mother, does not

routinely face that gap. The father, in fact, testified that he

wanted the child to spend "half the summer" with her mother and

that she was entitled to "as much exposure to both parents" as

possible. Inasmuch as an award of additional parenting time to

the mother is warranted under these circumstances, and "our

authority in custody [and visitation] matters is as broad as that

of Family Court," we modify the order to afford the mother

parenting time from 4:00 p.m. to 7:00 p.m. every Wednesday during

the period that the child is in the father's care in July and

August (Matter of Valentine v Valentine, 3 AD3d 646, 647 [2004];

see Bowman v Engelhart, 112 AD3d 1187, 1189 [2013]).

We have considered the remaining contentions of the parties

and found them to be lacking in merit.
-4- 521849 

Lahtinen, J.P., Egan Jr., Lynch and Mulvey, JJ., concur.

ORDERED that the order is modified, on the facts, 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