Anonymous 2011-1 v. Anonymous 2011-2

• Decision Date: 24 February 2016
• Citation: 26 N.Y.S.3d 203,136 A.D.3d 946
• Parties: ANONYMOUS 2011–1, respondent, v. ANONYMOUS 2011–2, appellant.
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 946

26 N.Y.S.3d 203

ANONYMOUS 2011–1, respondent,

v.ANONYMOUS 2011–2, appellant.

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

Feb. 24, 2016.

Cohen Clair Lans Greifer & Thorpe, LLP, New York, N.Y. (Bernard E. Clair, Michael Calogero, and Nancy E. Gianakos of counsel), for appellant.

Casey Greenfield, P.C., New York, N.Y. (Nicholas Connell of counsel), for respondent.

Barbara H. Kopman, Westbury, N.Y., attorney for the children.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ.

Appeal from an order of the Supreme Court, Nassau County (Sondra K. Pardes, J.), dated April 24, 2015. The order, after a hearing, granted the mother's motion to modify the joint custody provisions of a judgment of divorce dated September 6, 2011, so as to award her primary residential custody of the parties' children, and denied the father's motion to modify the judgment of divorce so as to award him sole decision-making authority with respect to the children.

ORDERED that the order is affirmed, with costs.

The parties have two children, a daughter, born in March 1999, and a son, born in September 2003. In a separation agreement dated April 2, 2010, which was incorporated but not merged into the parties' judgment of divorce, the parties agreed to share residential custody of the children on alternating weeks. Shortly after the divorce was finalized, the mother moved to modify the joint custody provisions of the judgment of divorce so as to award her sole custody, claiming that there had been a change in circumstances. The Supreme Court denied the motion without a hearing. On appeal, this Court found that the mother established that she was entitled to a hearing on her motion, and remitted the matter to the Supreme Court for the appointment of an attorney for the children and, thereafter, for a hearing and a new determination (see Anonymous 2011–1 v. Anonymous 2011–2, 102 A.D.3d 640, 958 N.Y.S.2d 181 ).

While the hearing was underway, both parties filed emergency orders to show cause based on circumstances that arose after the hearing had begun. In her motion, the mother sought, inter alia, an award of temporary residential custody of the children. In his motion, the father sought, inter alia, sole decision-making authority concerning the children. Both parties and the attorney for the children asked for a forensic evaluation to be performed.

On April 3, 2014, the Supreme Court ordered a forensic evaluation of the parties, the children, and any necessary third parties, scheduled an in camera conference with the children, and adjourned the hearing pending the conclusion of the forensic evaluation. The court also took note of the fact that both parties now alleged "a dramatic change in circumstance in their children's emotional and physical condition so as to warrant an immediate change of custody, and/or parental decision making." Based on the parties' affidavits, the court held, in effect, "that there has been a sufficient change in circumstances to warrant a determination as to whether modifying the provisions of the agreement is in the best interests of the children." Neither party challenges the Supreme Court's finding of changed circumstances.

After the hearing was concluded, in the order appealed from, the Supreme Court awarded the mother primary residential custody of the children. The court awarded the father visitation with the children on alternating weekends and, in the weeks preceding the mother's weekends, visitation with the son from Wednesday until Friday, and directed that the daughter would have "the option to spend either Wednesday night or Thursday night, or both, at the father's home." The court further directed that the parties were to continue to have joint legal custody and joint decision-making authority. The father appeals, contending, inter alia, that the Supreme Court erred in modifying the judgment of divorce so as to award the mother primary residential custody, and in denying his motion for an award of sole decision-making authority with respect to the children.

In determining whether a custody agreement that was incorporated into a judgment of divorce should be modified, the paramount issue before the court is whether, under the totality of the circumstances, a modification of custody is in the best interests of the child (see Matter of Honeywell v. Honeywell, 39 A.D.3d 857, 858, 835 N.Y.S.2d 327 ; Cuccurullo v. Cuccurullo, 21 A.D.3d 983, 984, 801 N.Y.S.2d 360 ).

To determine whether modification of a custody arrangement is in the best interests of the child, the court must weigh several factors of varying degrees of importance, including, inter alia, (1) the original placement of the child, (2) the length of that placement, (3) the child's desires, (4) the relative fitness of the parents, (5) the quality of the home environment, (6) the parental guidance given to the child, (7) the parent's financial status, (8) his or her ability to provide for the child's emotional and intellectual development, and (9) the willingness of the parent to assure meaningful contact between the child and the other parent (see McAvoy v. Hannigan, 107 A.D.3d 960, 962–963, 967 N.Y.S.2d 757 ; Matter of Mingo v. Belgrave, 69 A.D.3d 859, 859–860, 893 N.Y.S.2d 248 ; Cuccurullo v. Cuccurullo, 21 A.D.3d at 984, 801 N.Y.S.2d 360 ).

Weighing the factors relevant to any custody determination requires an evaluation of the credibility and sincerity of the parties involved. Therefore, the hearing court's credibility findings are accorded deference and its...