Bush v. Bush

• Decision Date: 28 March 2013
• Parties: In the Matter of Kimberly BUSH, Appellant, v. Teddy BUSH III, Respondent. (Proceeding No. 3.) (And Two Other Related Proceedings.) In the Matter of Adelbert Samuel Bush II, Respondent, v. Kimberly Bush, Appellant. (Proceeding No. 4.) (And Another Related Proceeding.)
• Court: New York Supreme Court — Appellate Division

104 A.D.3d 1069
962 N.Y.S.2d 449
2013 N.Y. Slip Op. 02116

In the Matter of Kimberly BUSH, Appellant,
v.
Teddy BUSH III, Respondent. (Proceeding No. 3.)
(And Two Other Related Proceedings.)
In the Matter of Adelbert Samuel Bush II, Respondent,
v.
Kimberly Bush, Appellant. (Proceeding No. 4.)
(And Another Related Proceeding.)

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

March 28, 2013.

[962 N.Y.S.2d 450]

A.L. Beth O'Connor, Cortland, for appellant.

Diane V. Bruns, Ithaca, for Adelbert Samuel Bush II, respondent.

Steven J. Getman, Ovid, attorney for the children.

Margaret McCarthy, Ithaca, attorney for the child.

Before: MERCURE, J.P., SPAIN, McCARTHY and GARRY, JJ.

GARRY, J.

[104 A.D.3d 1069]Appeals (1) from an order of the Family Court of [104 A.D.3d 1070]Cortland County (Campbell, J.), entered April 8, 2011, which, among other things, granted respondent's application, in proceeding No. 3 pursuant to Family Ct. Act article 6, to modify a prior order of custody, and (2) from an order of said court, entered April 8, 2011, which, among other things, granted petitioner's application, in proceeding No. 4 pursuant to Family Ct. Act article 6, for custody of the parties' child.

Kimberly Bush (hereinafter the mother) has three children (born in 1997, 2000 and 2003). Respondent Teddy Bush III is the father of the two older children, and petitioner Adelbert Samuel Bush II is the father of the youngest child. In April 2003, Family Court (DiStefano, J.) issued an order granting joint custody of the two older children to their father and the mother, with physical placement to the mother in Tennessee. In October 2010, the mother initiated proceedings seeking to hold the father of the older children in violation of the April 2003 order, and seeking modification of that order. The father of the older children cross-petitioned for modification. In November 2010, the father of the youngest child commenced proceedings seeking custody of his child, and the mother cross-petitioned for the same relief. Following a fact-finding hearing and a Lincoln hearing with the older children, Family Court (Campbell, J.) dismissed the mother's petitions, granted the fathers' petitions and awarded sole custody of the older children to their father and sole custody of the youngest child to her father. The mother appeals.

Initially, the attorneys for the children contend that this Court should decline jurisdiction

[962 N.Y.S.2d 451]

on the ground that all of the children now reside in Tennessee with their respective fathers pursuant to Family Court's orders, while the mother—a New York resident when these proceedings were commenced—allegedly no longer resides in this state. However, the claim that the mother has left New York is made solely in the briefs, is not included in the record and is thus beyond our consideration ( see Birr v. Birr, 70 A.D.3d 1221, 1223, 895 N.Y.S.2d 252 [2010] ). Family Court determined at the first appearance that it had jurisdiction over these proceedings under the Uniform Child Custody Jurisdiction and Enforcement Act ( see Domestic Relations Law 5–A), and thereafter retains exclusive continuing jurisdiction until a court determines otherwise ( seeDomestic Relations Law § 76–a[1]; Matter of Hissam v. Mancini, 80 A.D.3d 802, 803, 916 N.Y.S.2d 248 [2011],lv. dismissed and denied16 N.Y.3d 870, 923 N.Y.S.2d 406, 947 N.E.2d 1184 [2011] ).

We will not disturb Family Court's award of sole custody of the two older children to their father. The requisite change in circumstances was established by, among other things, the [104 A.D.3d 1071]mother's acknowledged drug abuse in Tennessee, her unilateral relocation in 2009 with the children to New York—which substantially increased the travel required for visitation—and her subsequent arrest and incarceration ( see Matter of Nephew v. Nephew, 45 A.D.3d 1194, 1195, 846 N.Y.S.2d 713 [2007];Matter of...