State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 16, 2015 519785 

____________________________________

In the Matter of MATTHEW K.,

Respondent,

v

MEMORANDUM AND ORDER

BETH K.,

Appellant.

(And Two Other Related Proceedings.)

____________________________________

Calendar Date: June 1, 2015

Before: Lahtinen, J.P., Lynch, Devine and Clark, JJ.

__________

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

appellant.

Jean M. Mahserjian, Clifton Park (Jennifer R. Morton of

counsel), for respondent.

Nicole R. Rodgers, Saratoga Springs, attorney for the

child.

__________

Devine, J.

Appeal from an order of the Family Court of Saratoga County

(Hall, J.), entered March 6, 2014, which, among other things,

granted petitioner's applications, in two proceedings 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 son born in 2007. 

After the parties' divorce was finalized in October 2012, they

shared joint legal and physical custody of the child pursuant to
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the terms of their separation agreement, which was incorporated

into the judgment of divorce. Several months later, the father

filed two petitions seeking an award of sole legal and physical

custody; the mother cross-petitioned for the same relief. 

Following a fact-finding hearing, Family Court awarded sole legal

and physical custody to the father and specified visitation to

the mother. The mother appeals.

We affirm. The mother argues that Family Court's custody

determination should be reversed because it is not supported by a

sound and substantial basis in the record. As a threshold

matter, the parties do not dispute, and we agree, that

modification of the initial custody arrangement was necessary

because their relationship "ha[d] so deteriorated as to make

cooperation for the good of the child[] impossible" (Heather B. v

Daniel B., 125 AD3d 1157, 1159 [2015] [internal quotation marks

and citations omitted]; see Matter of Tod ZZ. v Paula ZZ., 113

AD3d 1005, 1006 [2014]). We accordingly turn to the question of

whether an award of sole legal and physical custody to the father

was in the child's best interests.

A determination of what modification of an existing custody

arrangement will best serve a child's interests involves

consideration of, among other factors, "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 [the child's] relationship with the other parent" (Matter

of Parchinsky v Parchinsky, 114 AD3d 1040, 1041 [2014] [internal

quotation marks and citations omitted]). Family Court found both

parents to be relatively fit and, indeed, emphasized its regret

that they could not "work together . . . to promote their son's

health, stability and future." The evidence nevertheless

supports a finding that the mother interfered with the father's

relationship with the child by accusing him of sexually abusing

the child, allegations that she has continued to believe despite

their having been deemed unfounded or unverifiable by child

protective services, law enforcement and the psychologist who

conducted court-ordered mental health evaluations of the parents

and the child (see Matter of Anthony MM. v Jacquelyn NN., 91 AD3d

1036, 1037-1038 [2012]). Further, the mother failed to nurture

the child's emotional well-being in some respects (see e.g.
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Heather B. v Daniel B., 125 AD3d at 1160; see also Matter of

Parchinsky v Parchinsky, 114 AD3d at 1041). Notably, she impeded

the father's efforts to arrange for a long-term therapist for the

child, with the result that the child went without needed

counseling for a substantial period of time.

We therefore find that there was sound and substantial

support in the record for Family Court's determination that an

award of sole legal and physical custody to the father was in the

child's best interests (see Matter of Greene v Robarge, 104 AD3d

1073, 1075-1077 [2013]). To the extent that the mother contends

that Family Court failed to apportion sufficient weight to her

testimony and that of her witnesses, while ignoring evidence of

the father's parental shortcomings, we defer to Family Court's

superior vantage point from which to assess witness credibility

and compare the parents' relative fitness (see id. at 1076-1077). 

Contrary to the mother's further claim that Family Court overly

relied on the conclusions of the psychologist who prepared the

court-ordered evaluations, the record shows that the court

disagreed with that expert's findings as to at least one crucial

issue. In any event, Family Court appropriately treated the

expert's conclusions as "but one factor" in making its best

interests determination (Matter of Wolcott v Cook, 265 AD2d 748,

750 [1999]).

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

ENTER:

Robert D. Mayberger

Clerk of the Court