Gaudette v. Gaudette

• Decision Date: 17 June 1999
• Citation: 691 N.Y.S.2d 681,262 AD2d 804
• Parties: In the Matter of Patricia GAUDETTE, Respondent, v. Donald GAUDETTE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 681

691 N.Y.S.2d 681

In the Matter of Patricia GAUDETTE, Respondent, v. Donald GAUDETTE, Appellant.

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

June 17, 1999.

Oliver L. Bickel, Plattsburgh, for appellant.

Ellen C. Schell, Keeseville, for respondent.

Evan F. Bracy, Law Guardian, Plattsburgh, for Matthew Gaudette and others.

Before: MIKOLL, J.P., MERCURE, PETERS, SPAIN and CARPINELLO, JJ.

MIKOLL, J.P.

Appeal from an order of the Family Court of Clinton County (McGill, J.), entered May 29, 1997, which, inter alia, granted petitioner's application, in a proceeding pursuant to Family Court Act article 6, for sole custody of the parties' children.

Petitioner and respondent were married in 1979. There are three issue of the marriage; Matthew (born in 1980), Jessica (born in 1982) and Stephanie (born in 1984). Pursuant to a stipulation of the parties, a Family Court order was entered, and subsequently amended, which, inter alia, granted the parties joint custody of their children, with petitioner having primary custody, and set out visitation rights for respondent. A divorce was granted to the parties in 1994 and the Family Court stipulation was incorporated into, but not merged with, the judgment of divorce (see, Gaudette v. Gaudette, 234 A.D.2d 619, 620, 650 N.Y.S.2d 880, appeal dismissed 89 N.Y.2d 1023, 657 N.Y.S.2d 594, 679 N.E.2d 1074).

In October 1996, petitioner commenced this proceeding seeking sole custody of the children and modification of respondent's visitation schedule on the ground that a change of circumstances had occurred based on a breakdown of communication between the parties. Following a hearing, Family Court awarded petitioner sole custody of the children after finding, inter alia, that joint custody was not feasible because of the parties' acrimonious relationship and their inability to cooperate in raising the children. Subsequently, an order was entered to that effect which also modified respondent's visitation schedule. Respondent appeals.

Respondent contends that there were insufficient grounds to warrant modification of the prior joint custody arrangement in that, he urges, petitioner failed to make a showing of a substantial change in circumstances and that modification was not in the best interests of the children. He claims that their relationship is substantially unchanged from the time of the original order and, therefore, the current situation does not represent a substantial change in circumstances. We disagree and affirm the order.

Where a voluntary agreement of joint custody is entered into, it will not be...