Bond v. Bond
| Decision Date | 29 March 2012 |
| Citation | 2012 N.Y. Slip Op. 02358,940 N.Y.S.2d 705,93 A.D.3d 1100 |
| Parties | In the Matter of Noah P. BOND Sr., Appellant, v. Eileen M. BOND, Respondent. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Eugene P. Grimmick, Troy, for appellant.
Jo M. Katz, Troy, for respondent.
Sandra M. Colatosti, Albany, attorney for the children.
Before: PETERS, J.P., ROSE, KAVANAGH, GARRY and EGAN JR., JJ.
Appeal from an order of the Family Court of Rensselaer County (Cholakis, J.), entered November 16, 2010, which dismissed 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 six children. The three youngest children, two daughters (born in 1994 and 1995) and a son (born in 2001), are the subject of the proceeding on appeal. In November 2004, the parties stipulated to a custody arrangement by which the mother had sole legal and primary physical custody of the three children, with extended alternate weekend visitation with the father. This agreement was later incorporated into a custody order in January 2005 and the judgment of divorce in March 2007. In April 2010, the father filed a petition for modification seeking, among other things, joint legal and primary physical custody of the younger daughter and joint legal and shared physical custody of the son. Following trial, Family Court dismissed the petition on the ground that the father had failed to establish a sufficient change in circumstances. The father appeals.
“The party seeking modification of a custody order must first prove that there has been a sufficient change in circumstances since the entry of the prior order to require the court to reexamine the issue of custody” ( Matter of Clark v. Ingraham, 88 A.D.3d 1079, 1079, 931 N.Y.S.2d 159 [2011] [citations omitted]; see Matter of Fox v. Grivas, 81 A.D.3d 1014, 1015, 916 N.Y.S.2d 286 [2011] ). Here, the father's petition alleged that the two younger children wished to spend more time with him, that the mother was verbally and physically abusive, and that the mother disappointed the younger daughter by failing to bring her to an out-of-state award ceremony.
As to the events surrounding the award ceremony, we defer to Family Court's credibility determinations ( see Matter of Jeker v. Weiss, 77 A.D.3d 1069, 1070, 909 N.Y.S.2d 184 [2010]; Matter of Schermerhorn v. Breen, 8 A.D.3d 709, 710, 777 N.Y.S.2d 790 [2004] ) and, as the allegations of abuse were unsubstantiated and the children's preferences standing alone did not establish a sufficient change in circumstances, there is a sound and substantial basis in the record supporting Family Court's determination ( see Matter of Sharyn PP. v. Richard QQ., 83 A.D.3d 1140, 1143, 921 N.Y.S.2d 656 [2011]; Matter of Witherow v. Bloomingdale, 40 A.D.3d 1203, 1204–1205, 834 N.Y.S.2d 723 [2007] ). The trial testimony and decision referenced events occurring prior to the existing custody order. As the father argues, relying upon those prior events would be improper in assessing whether there had been a change in circumstances ( see Matter of Bouwens v. Bouwens, 86 A.D.3d 731, 732, 927 N.Y.S.2d 215 [2011] ). Upon review, however, we find that the analysis does not rely upon these extraneous references.
Finally, we reject the father's contention that Family Court's error in failing to afford him the opportunity to make a closing...
To continue reading
Request your trial
-
Yeager v. Yeager
...1336, 1336, 967 N.Y.S.2d 783 [2013];Matter of Brown v. Erbstoesser, 85 A.D.3d at 1499, 928 N.Y.S.2d 92;compare Matter of Bond v. Bond, 93 A.D.3d 1100, 1101, 940 N.Y.S.2d 705 [2012] ). Here, the mother's primary argument in support of her petition is that the child prefers to spend less time......
-
Tompkins Cnty. Dep't of Soc. Servs. v. Elatisha SS. (In re Chorus SS.)
...judgment—particularly in view of the fact that respondent admitted to using crack cocaine three weeks prior to the dispositional [93 A.D.3d 1100] hearing—and, based upon our review of the record as a whole, we agree that termination of respondent's parental rights was in the children's best......
-
Hrostowski v. Micha
...2010 custody order is not relevant to assessing whether this threshold showing has been met (see Matter of 132 A.D.3d 1105Bond v. Bond, 93 A.D.3d 1100, 1101, 940 N.Y.S.2d 705 [2012] ; Matter of Bouwens v. Bouwens, 86 A.D.3d 731, 732, 927 N.Y.S.2d 215 [2011] ; Matter of Fielding v. Fielding,......
-
Elizabeth S. v. Ben T.
...15 years old and the father was 19 years old – facts that occurred prior to entry of the March 2013 order (see Matter of Bond v. Bond, 93 A.D.3d 1100, 1101, 940 N.Y.S.2d 705 [2012] ). Although the evidence at the hearing established that the child had started acting out in school following ......