Anonymous 2011-1 v. Anonymous 2011-2

• Decision Date: 09 January 2013
• Citation: 958 N.Y.S.2d 181,102 A.D.3d 640,2013 N.Y. Slip Op. 00053
• Parties: ANONYMOUS 2011–1, appellant, v. ANONYMOUS 2011–2, respondent.
• Court: New York Supreme Court — Appellate Division

102 A.D.3d 640

958 N.Y.S.2d 181

2013 N.Y. Slip Op. 00053

ANONYMOUS 2011–1, appellant,

v.ANONYMOUS 2011–2, respondent.

Supreme Court, Appellate Division, Second Department, New York.

Jan. 9, 2013.

Greenfield Labby, LLP, New York, N.Y. (Casey Greenfield of counsel), for appellant.

Albanese & Albanese, LLP, Garden City, N.Y. (Barry A. Oster of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

In a matrimonial action in which the parties were divorced by judgment dated September 1, 2011, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Schwartz–Zimmerman, J.), dated February 15, 2012, as, without a hearing, denied that branch of her motion which was to modify the joint custody provisions of the parties' judgment of divorce so as to award her sole custody of the parties' children.

ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for the appointment of an attorney to represent the interests of the children, and thereafter for a hearing and a new determination of that branch of the plaintiff's motion which was to modify the joint custody provisions of the parties' judgment of divorce so as to award her sole custody of the parties' children.

The parties have two children, a daughter, born March 21, 1999, and a son, born September 8, 2003. The parties entered into a separation agreement on April 2, 2010, pursuant to which they agreed to share legal and residential custody of the children on alternating weeks. They also agreed, inter alia, that the children's therapist would act as a neutral mediator to help them resolve any parenting disputes. The separation agreement (hereinafter the agreement) was incorporated but not merged into the parties' judgment of divorce dated September 1, 2011.

On October 19, 2011, the plaintiff (hereinafter the mother) moved, inter alia, to modify the joint custody provisions of the judgment of divorce so as to award her sole custody of the children. In support of her motion, the mother submitted an affidavit wherein she asserted, inter alia, that a change in circumstances warranted a modification of the shared custody arrangement. The mother claimed that the defendant (hereinafter the father) had repeatedly violated conditions of the agreement. The mother further alleged that, after the execution of the agreement, the father had hired the children's therapist as a full-time employee to perform virtually all of his parental duties. The Supreme Court denied, without a hearing, that branch of the mother's motion which was to modify the joint custody provisions of the judgment of divorce so as to award her sole custody of the children, finding that the mother had not alleged a change of circumstances “which would warrant the relief requested.”

“An order ... modifying custody[ ] must be addressed solely to the infant's best interests” ( Kresnicka v. Kresnicka, 48 A.D.2d 929, 929, 369 N.Y.S.2d 522;see Matter of Sullivan v. Moore, 95 A.D.3d 1223, 944 N.Y.S.2d 641;Matter of Leichter–Kessler v. Kessler, 71 A.D.3d 1148, 897 N.Y.S.2d 639;Hizme v. Hizme, 212 A.D.2d 580, 622 N.Y.S.2d 737). Where parents enter into an agreement concerning custody, “it will not be set aside unless there is a sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interests of the children” ( Matter of Gaudette v. Gaudette, 262 A.D.2d 804, 805, 691 N.Y.S.2d 681;see Matter of Joseph F. v. Patricia F., 32 A.D.3d 938, 939, 821 N.Y.S.2d 625;Smoczkiewicz v. Smoczkiewicz, 2 A.D.3d 705, 706, 770 N.Y.S.2d 101;see also Kollmar v. Kollmar, 100 A.D.3d 712, 953 N.Y.S.2d 876). When making such determinations, a court “must consider the totality of the circumstances” ( Matter of Chery v. Richardson, 88 A.D.3d 788, 788, 930 N.Y.S.2d 663 [internal quotation marks omitted]; see Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260;Matter of Solovay v. Solovay, 94 A.D.3d 898, 899, 941 N.Y.S.2d 712). A party seeking a change in custody is entitled to a hearing where the movant has made an evidentiary showing of “a sufficient change in circumstances demonstrating a real need for a change of custody in order to insure the [children's] best interests”...