State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 16, 2015 518757 

________________________________

In the Matter of TAMMY DEMERS,

Respondent,

v MEMORANDUM AND ORDER

GREGORY McLEAR,

Appellant.

(And Three Other Related 

Proceedings.)

________________________________

Calendar Date: June 2, 2015

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

__________

Cynthia Feathers, Rural Law Center of New York, Albany, for

appellant.

A. Michael Gebo, Ogdensburg, for respondent.

William J. Galvin, Potsdam, attorney for the child.

__________

Garry, J.

Appeal from a modified order of the Family Court of St.

Lawrence County (Morris, J.), entered March 7, 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 mother) and respondent

(hereinafter the father) are the parents of a child (born in

2012) who has lived since birth with the mother. In October

2012, an amended order was entered upon the consent of the
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parties and the attorney for the child, providing for the parties

to have joint legal custody with primary physical custody to the

mother, and establishing a schedule for parenting time by the

father, including specific periods to be supervised by the

paternal grandmother, and some unsupervised periods. Thereafter,

the mother commenced the current proceedings seeking to modify

that order, in addition to violation proceedings. Following a

hearing, Family Court dismissed the mother's violation petitions

and granted her petitions for modification. The subject order

grants the mother sole legal custody and establishes a limited

schedule of parenting time for the father, subject to certain

express conditions, including a direction that the father's other

children shall not be present during these periods of time. The

father appeals.

"It is well established that, upon a request for

modification of a prior order, a threshold finding of a change in

circumstances is required before the court may proceed to a best

interests analysis" (Matter of Barbara L. v Robert M., 116 AD3d

1101, 1102 [2014] [citations omitted]). Here, although the

custody order entered upon agreement of the parties is entitled

to consideration in our analysis, "it is afforded less weight

than a determination rendered after a full hearing" (Matter of

Hetherton v Ogden, 79 AD3d 1172, 1174 [2010]; see Matter of

Hayward v Thurmond, 85 AD3d 1260, 1261 [2011]). The mother

testified that, on numerous occasions, the father did not have

the child ready at pick-up time, refused to discuss with her

matters related to the child's feeding, appropriate activities,

visitation and diaper changes, used obscene expletives and hung

up the phone on her. With due deference to Family Court's

credibility assessments (see Matter of Deyo v Bagnato, 107 AD3d

1317, 1318 [2013], lv denied 22 NY3d 851 [2013]), we find that

this testimony demonstrated the requisite change in circumstances

by revealing that the relationship between the parties had

deteriorated to the point that cooperation for the good of the

child was not possible (see Matter of Sonley v Sonley, 115 AD3d

1071, 1072 [2014]). 

We next review Family Court's determination that granting

sole custody to the mother was in the child's best interests. A

best interests determination requires consideration of several
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factors which "include, among others, maintaining stability for

the child[], the respective home environments, length of the

current custody arrangement, each parent's relative fitness and

past parenting performance, and willingness to foster a healthy

relationship with the other parent" (Matter of Chris X. v

Jeanette Y., 124 AD3d 1013, 1014 [2015] [internal quotation marks

and citation omitted]; see Matter of Parchinsky v Parchinsky, 114

AD3d 1040, 1041 [2014]). Here, the record reveals that the

father has fundamental deficiencies in his parenting abilities,

evidenced by several incidents in which he returned the child to

the mother with a soiled diaper and rashes, as well as several 

occasions on which he failed to feed the child with the frozen

breast milk provided by the mother for visitations. On one

occasion, the child was returned to the mother sick with a fever

and, despite being advised of the child's condition, the father

admittedly did not call during the course of the following week

to learn how the child was doing. Moreover, as further addressed

below, the father admitted to a history of some inappropriate

conduct, apparently arising from striking or otherwise engaging

in some unspecified form of corporal punishment with one or more

of his older children. His testimony revealed that this conduct

had resulted in an unspecified prior criminal conviction and

probation, and an indicated child protective report (see Matter

of Brown v Akatsu, 125 AD3d 1163, 1166 [2015]; Matter of Melissa

K. v. Brian K., 72 AD3d 1129, 1131 [2010]). 

We fully agree with Family Court's assessment that the

record produced by the parties is scant as to a number of

potentially pertinent factors. Nevertheless, we find that the

evidence was sufficiently developed to support the custody

determination. Several important factors were addressed and

considered, including the mother's occupation as a registered

nurse, the fact that the child has resided with the mother since

birth, and her clear dedication to the child, as demonstrated in

her testimony. This is contrasted with the father's pattern of

inattention to the child and admitted history of some manner of

inappropriate physical conduct apparently involving discipline of

his older children. Accordingly, "[c]onsidering the record as a

whole, we find a sound and substantial basis in the record for

the court's award of sole custody to the mother" (Matter of Brown

v Akatsu, 125 AD3d at 1166).
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As the father argues upon appeal, there is a dearth of

record evidence supporting the provision limiting all parenting

time with the father to periods when the child's older half

siblings are not present. Considering the father's testimony

upon cross-examination admitting to some prior unspecified

incidents apparently involving the corporal punishment of his

older children, meaningful support was not wholly lacking. These

prior incidents had resulted in the imposition of supervised

visitation with the older children. However, there was no

evidence produced to clarify or explain any detail or establish

any of the circumstances underlying these admissions. No

documents or other proof or testimony was offered or entered. 

The father testified that the restrictions that had previously

been imposed had expired at the time of the hearing. Nothing

more was revealed, and the underlying facts were left wholly

undeveloped.

Despite the argument by the attorney for the child that

limiting the father's time with this child to periods when the

half siblings are not present will protect the child by allowing

the father to focus on the child exclusively, the provision is

troubling. The law strongly favors the development and

encouragement of sibling bonds (see Matter of Crowder v Austin,

90 AD3d 753, 754 [2011], lv denied 18 NY3d 809 [2012]; Matter of

Valenti v Valenti, 57 AD3d 1131, 1135 [2008], lv denied 12 NY3d

703 [2009]; compare Matter of Brown v Akatsu, 125 AD3d at 1166). 

The father's apparent history of inappropriate corporal

punishment certainly raises issues of significant concern. 

Nonetheless, the issue is too poorly developed in the record to

support the argument advanced by the attorney for the child. In

essence, the argument is that allowing the children to be

together in the father's company will result in an increased risk

of danger to the child. Based upon this limited record, this

assertion is unduly speculative. As a practical matter, this

ruling deems any time spent with the half siblings to be

detrimental to the child, and deprives the child of all contact

with them. This result is notably at odds with established

precedent and cannot be accepted, especially in the complete

absence of proof that there are no possible circumstances in

which – perhaps with assistance or supervision for the father –

the children could be together without any resulting detriment to
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the child. Moreover, the record does not permit this Court to

make an appropriate determination. Accordingly, we remit to

Family Court for further development of the evidence, and to

fashion an appropriate order based upon what it may find to be

the best interests of the subject child, with due regard for the

encouragement of sibling relationships, to the extent possible

(see Matter of Kiernan v Kiernan, 114 AD3d 1045, 1046 [2014];

Matter of Jodi S. v Jason T., 85 AD3d 1239, 1242-1244 [2011]).

Peters, P.J., Lahtinen and Lynch, JJ., concur.

ORDERED that the modified order is modified, on the law,

without costs, by reversing so much thereof as prohibited

respondent from having his older children present during his time

with the subject child; matter remitted to the Family Court of

St. Lawrence County for further proceedings not inconsistent with

this Court's decision and, pending said proceedings, the

visitation terms of said order shall remain in effect on a

temporary basis; and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court