Fox v. Fox

• Decision Date: 13 March 1992
• Citation: 582 N.Y.S.2d 863,177 A.D.2d 209
• Parties: David Virgil FOX, Appellant, v. Jo Ellen FOX, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 863

582 N.Y.S.2d 863

177 A.D.2d 209

David Virgil FOX, Appellant, v. Jo Ellen FOX, Respondent.

Supreme Court, Appellate Division Fourth Department.

March 13, 1992.

Andrew J. Cohen by Alfred Heilman, Rochester, for appellant.

David J. Morris, Hunt, for respondent.

Before GREEN, J.P., and PINE, BALIO, LAWTON and DAVIS, JJ.

BALIO, Justice.

The parties physically separated in September of 1986. At that time, defendant mother left the marital residence. The two children of the marriage, a daughter five years of age and a son ten months old, remained with the father in the marital residence. The parties were divorced in August of 1987. The judgment of divorce incorporated without merger the parties' stipulation providing for joint custody of their two children, with primary physical custody to remain with the father and liberal visitation privileges to the mother. In August 1991, Supreme Court granted the mother's motion for a change of primary physical custody.

The party seeking a change of custody "bears a heavy burden of proof that the change contemplated is in the child's best interests" (Collins v. Collins, 115 A.D.2d 979, 497 N.Y.S.2d 544). Among the factors or circumstances to be considered in ascertaining the child's best interests are: (1) the continuity and stability of the existing custodial arrangement, including the relative fitness of the parents and the length of time the present custodial arrangement has continued; (2) quality of the child's home environment and that of the parent seeking custody; (3) the ability of each parent to provide for the child's emotional and intellectual development; (4) the financial status and ability of each parent to provide for the child; (5) the individual needs and expressed desires of the child; and (6) the need of the child to live with siblings (see, Matter of Louise E.S. v. W. Stephen S., 64 N.Y.2d 946, 488 N.Y.S.2d 637, 477 N.E.2d 1091; Eschbach v. Eschbach, 56 N.Y.2d 167, 172-173, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Matter of Nehra v. Uhlar, 43 N.Y.2d 242, 250-251, 401 N.Y.S.2d 168, 372 N.E.2d 4; Matter of Ebert v. Ebert, 38 N.Y.2d 700, 702-704, 382 N.Y.S.2d 472, 346 N.E.2d 240; Matter of Blake v. Blake, 106 A.D.2d 916, 483 N.Y.S.2d 879).

The preexisting custodial arrangement, whether established by agreement or order, is a weighty factor, and the existing arrangement should be changed based only upon "countervailing circumstances on consideration of the totality of circumstances" (Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95, 447 N.Y.S.2d 893, 432 N.E.2d 765). The priority accorded the existing arrangement reflects the view that custody of children should be established on a long-term basis, wherever possible, and that "children should not be shuttled back and forth between divorced parents merely because of changes in marital status, economic circumstances or improvements in moral or psychological adjustment" (Obey v. Degling, 37 N.Y.2d 768, 770, 375 N.Y.S.2d 91, 337 N.E.2d 601; see also, Matter of Nehra v. Uhlar, 43 N.Y.2d 242, 251, 401 N.Y.S.2d 168, 372 N.E.2d 4; Keating v. Keating, 147 A.D.2d 675, 677, 538 N.Y.S.2d 286, appeal dismissed 74 N.Y.2d 791, 545 N.Y.S.2d 106, 543 N.E.2d 749; Martin v. Martin, 74 A.D.2d 419, 426, 427 N.Y.S.2d 1002). Thus, a long-term custodial arrangement established by agreement should prevail "unless it is demonstrated that the custodial parent is unfit or perhaps less fit" (Martin v. Martin, supra, at 426, 427 N.Y.S.2d 1002; see also, Obey v. Degling, supra, 37 N.Y.2d at 770, 375 N.Y.S.2d 91, 337 N.E.2d 601; Alan G. v. Joan G., 104 A.D.2d 147, 153, 482 N.Y.S.2d 272), and such established custodial arrangement should not be changed solely to accommodate the desires of the child (see, Matter of Ebert v. Ebert, 38 N.Y.2d 700, 703, 382 N.Y.S.2d 472, 346 N.E.2d 240, supra).

In the instant case, it is clear that the trial court changed custody of both children because of the "strong desires" of the 10-year-old daughter to live with her mother and because of the close relationship between the siblings. This was improper. A child of ten or eleven years of age generally is not of sufficient maturity to weigh intelligently the factors essential to making a wise choice as to custody (Matter of Robert T.F. v. Rosemary F., 148 A.D.2d 449, 452, 538 N.Y.S.2d 605; Feltman v. Feltman, 99 A.D.2d 540, 541, 471 N.Y.S.2d 619; Matter of Hahn v. Falce, 56 Misc.2d 427, 435, 289 N.Y.S.2d 100). Moreover, the trial court acted without the benefit of an investigative report and without the testimony of teachers, counselors, psychologists or other experts (see, Mead v. Mead, 143 A.D.2d 454, 532 N.Y.S.2d 449; Calder v. Woolverton, 50 A.D.2d 587, 375 N.Y.S.2d 150, affd., 39 N.Y.2d 1042, 387 N.Y.S.2d 252, 355 N.E.2d 306; Matter of Barry v. Glynn, 59 Misc.2d 75, 297 N.Y.S.2d 786 [child's preference given effect where supported by expert testimony of psychologist and detailed probation reports]. The record, therefore, is devoid of evidence that this 10-year-old is possessed of exceptional judgment or maturity to decide her custodial fate or that her strong preference to be with her mother is in her best interests.

Ordinarily, the custody determination of the trial court is entitled to great deference (see, Eschbach v. Eschbach, 56 N.Y.2d 167, 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260, supra; Martin v. Martin, 74 A.D.2d 419, 425, 427 N.Y.S.2d 1002, supra). Such deference is not warranted, however, where the custody determination lacks a sound and substantial basis in the record (see, Keating v. Keating, 147 A.D.2d 675, 677, 538 N.Y.S.2d 286 supra; Matter of Gloria S. v. Richard B., 80 A.D.2d 72, 76, 437 N.Y.S.2d 411). In the instant case, the trial court, by effectively permitting the 10-year-old daughter to dictate the custody arrangement for herself and her brother, failed to weigh properly all of the factors and circumstances bearing on the children's best interests. We further conclude that those factors other than the weighty, but not conclusive, circumstances of the existing custodial arrangement, do not demonstrate "countervailing circumstances" supporting a change of custody. Accordingly, the order should be reversed.

There is no question that the daughter has expressed a strong preference to reside with her mother. The daughter expressed discontent with the fact that her grandmother talked poorly of her mother and that she had chores to do for her grandmother. The grandmother's reference to the mother was one isolated event, however, and the importance of this event was discounted by the Law Guardian. The father is somewhat conservative in attitude and approach, and it is evident that he is the more strict disciplinarian. Unfortunately, there is no expert testimony or report to measure the influence of discipline and the newness of the mother's home and environment upon the daughter's preference. In any event, the trial court found that both parties were fit parents and made no finding that one parent was more or less fit than the other. The record supports that finding. There is no evidence that one parent has an appreciably greater financial ability to provide for the children than the other parent. The daughter is doing very well academically, and the son is progressing well in the early stages of his education. There is no evidence that a change of custody will enhance the children's educational development. The children have continuously resided in the father's home in Naples, N.Y., where each child has a separate bedroom. During overnight visitations at her mother's residence, which the mother occupies with her current husband and her husband's six-year-old son, the daughter sleeps in the same bedroom with her brother and her stepbrother. Although the mother and her husband were in the process of constructing a separate bedroom for the daughter, the Law Guardian properly considered the current situation unsuitable. Because of the father's work schedule, the children's paternal grandmother arrives at the father's house early each weekday morning to get the children ready for school and is there during after-school hours until the husband returns from work. Because of the work schedules of the mother and her husband, the children would be readied for school by the husband's father. The Law Guardian expressed concern about the ability of the husband's father to care for the children. Additionally, the mother and her husband frequently work on weekends; plaintiff father does not. Finally, the record is devoid of evidence that the relationship of the children is so close that they should not be separated. The sole basis for that finding by the trial court is a conclusory statement by the Law Guardian, and it appears that the statement was based on matters dehors the record.

In sum, the record does not support a finding that the strong preference of the 10-year-old daughter to live with her mo...