Clark v. Hart

• Decision Date: 23 October 2014
• Docket Number: 517570.
• Citation: 993 N.Y.S.2d 808,2014 N.Y. Slip Op. 07232,121 A.D.3d 1366
• Parties: In the Matter of Mark J. CLARK, Respondent, v. Lori M. HART, Appellant, (And Another Related Proceeding.).
• Court: New York Supreme Court — Appellate Division

121 A.D.3d 1366
993 N.Y.S.2d 808
2014 N.Y. Slip Op. 07232

In the Matter of Mark J. CLARK, Respondent
v.
Lori M. HART, Appellant
(And Another Related Proceeding.).

517570.

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

Oct. 23, 2014.

993 N.Y.S.2d 808

Lisa A. Burgess, Indian Lake, for appellant.

Diane Exoo, Canton, attorney for the child.

Before: LAHTINEN, J.P., STEIN, McCARTHY, ROSE and DEVINE, JJ.

Opinion

STEIN, J.

121 A.D.3d 1366

Appeal from an order of the Family Court of St. Lawrence County (Rogers, J.), entered September 6, 2013, which granted

993 N.Y.S.2d 809

petitioner's application, in two proceedings pursuant to Family Ct. Act article 6, for modification of a prior order of custody.

The parties are the parents of a son (born in 2007). In October 2012, petitioner (hereinafter the father) commenced the first of these proceedings to modify a January 2012 order that reflected the parties' stipulated agreement on custody, pursuant to which

121 A.D.3d 1367

they shared joint custody of the child, with respondent (hereinafter the mother) having primary physical custody. The father now seeks custody of the child, alleging, among other things, that the mother created an unstable home environment, leading to a deterioration in the child's behavior and his resulting suspension from school and day care. In November 2012, the father filed a second “emergency” petition for modification, seeking immediate custody based upon alleged physical and mental abuse of the child by the mother's older son (born in 1993). Following a hearing on the request for temporary relief, Family Court (Morris, J.) declined to make any changes to the child's placement, but ordered a Family Ct. Act § 1034 investigation and issued an order of protection directing that the mother not allow her older son to have contact with the child. The matter proceeded to a hearing on both petitions, at the conclusion of which Family Court (Rogers, J.) issued a temporary order placing the child in the father's custody. Following receipt of written submissions by the attorneys for the mother and the child, Family Court awarded the father sole legal and physical custody of the child, with visitation to the mother. The mother now appeals, arguing that Family Court erred in determining that the father demonstrated either a change in circumstances warranting modification of the prior order or that a change in custody would serve the child's best interests.

“ ‘A parent seeking to modify an existing custody order bears the burden of demonstrating a sufficient change in circumstances since the entry of the prior order to warrant modification thereof in the child [ ]'s best interests' ” (Matter of Paul A. v. Shaundell LL., 117 A.D.3d 1346, 1348, 987 N.Y.S.2d 463 [2014], lv. dismissed and denied 24 N.Y.3d 937, 993 N.Y.S.2d 548, 17...