State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 29, 2015 519781 

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In the Matter of ANDREW

CHARLES SCHLEGEL,

Respondent,

v MEMORANDUM AND ORDER

ASHLEY MARIE KROPF,

Appellant.

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Calendar Date: September 15, 2015

Before: Peters, P.J., Lahtinen, McCarthy and Lynch, JJ.

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Ted Stein, Woodstock, for appellant.

Catherine Charuk, Kingston, for respondent.

Ariel Futerfas, Kingston, attorney for the child.

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McCarthy, J.

Appeal from an order of the Family Court of Ulster County

(McGinty, J.), entered August 18, 2014, which granted

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 parents of a daughter (born in

2008). Pursuant to a March 2009 order, entered upon consent, the

parties shared legal and physical custody of the child and

adhered to an alternating, split-week schedule. In October 2013,

the father commenced the instant Family Ct Act article 6

proceeding to modify the existing order of custody. Following a

fact-finding hearing, Family Court modified the prior custody
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order by awarding the father sole legal and physical custody of

the child and granting the mother parenting time during certain

specified times, including alternate weekends and one day during

the work week. The mother appeals. 

The mother's sole argument is that the father failed to

establish a change in circumstance to warrant consideration of

the best interests of the child. We disagree. Family Court can

modify an existing custody order only where the petitioning party

demonstrates a change in circumstances that warrants an inquiry

into the best interests of the child (see Matter of Cornick v

Floreno, 130 AD3d 1170, 1170 [2015]; Matter of Jones v Moore, 129

AD3d 1400, 1401 [2015]). A custody order entered upon consent is

afforded less weight than an order "resulting from a judicial

determination after a hearing" (Matter of Klee v Schill, 95 AD3d

1599, 1600 n 3 [2012]; see Matter of Casarotti v Casarotti, 107

AD3d 1336, 1337 [2013], lv denied 22 NY3d 852 [2013]). 

The credited evidence presented demonstrated that, although

the parties were initially able to carry out the terms and

conditions of the March 2009 custody order, continuation of that

custodial arrangement was no longer feasible. Beginning in

approximately December 2010, the parties were unable to amicably

communicate regarding the child and, in fact, rarely communicated

at all. Exchanges of the child often entailed the mother

accusing the father of mistreating the child and failing to

provide her with proper nutrition. Further, the mother switched

the child's pediatrician without consulting the father and

thereafter maintained that only she was permitted to take the

child to appointments. In view of this evidence that the

parties' relationship had deteriorated to such a degree that

cooperation for the good of the child was no longer possible,

Family Court properly concluded that a change in circumstance had

occurred (see Matter of Paul A. v Shaundell LL., 117 AD3d 1346,

1348 [2014], lv dismissed and denied 24 NY3d 937 [2014]; Matter

of Spiewak v Ackerman, 88 AD3d 1191, 1192 [2011]).

Peters, P.J., Lahtinen and Lynch, JJ., concur.
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ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court