Grabowski v. Smith

• Decision Date: 24 April 2020
• Docket Number: CAF 19–00219,151
• Citation: 123 N.Y.S.3d 313,182 A.D.3d 1002
• Parties: In the Matter of Jacquelyn M. GRABOWSKI, Petitioner–Respondent, v. Jay Craig SMITH, Jr., Respondent–Appellant. Kimberly M. Seager, Esq., Attorney for the Child, Appellant.
• Court: New York Supreme Court — Appellate Division

182 A.D.3d 1002
123 N.Y.S.3d 313

In the Matter of Jacquelyn M. GRABOWSKI, Petitioner–Respondent,
v.
Jay Craig SMITH, Jr., Respondent–Appellant.

Kimberly M. Seager, Esq., Attorney for the Child, Appellant.

151
CAF 19–00219

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

Entered: April 24, 2020

D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT–APPELLANT.

KIMBERLY M. SEAGER, FULTON, ATTORNEY FOR THE CHILD, APPELLANT PRO SE.

PRESENT: WHALEN, P.J., CURRAN, TROUTMAN, WINSLOW, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this proceeding pursuant to Family Court Act article 6, respondent father and the Attorney for the Child (appellate AFC) appeal from an order that, inter alia, modified a prior custody and visitation order by awarding petitioner mother sole legal and physical custody of the subject child. Although Family Court did not expressly determine that there was a sufficient change in circumstances to warrant an inquiry into whether modification of the order would be in the child's best interests, this Court may "independently review the record to ascertain whether the requisite change in circumstances existed" ( Matter of DeVore v. O'Harra–Gardner, 177 A.D.3d 1264, 1265, 112 N.Y.S.3d 380 [4th Dept. 2019] [internal quotation marks omitted] ). Contrary to the contention of the father and the appellate AFC, our review of the record reveals "extensive findings of fact, placed on the record by [the court], which

123 N.Y.S.3d 315

demonstrate unequivocally that a significant change in circumstances occurred since the entry of the consent custody order" ( Matter of Aronica v. Aronica, 151 A.D.3d 1605, 1605, 56 N.Y.S.3d 701 [4th Dept. 2017] [internal quotation marks omitted] ). Specifically, affording great weight to the court's assessment of the credibility of the witnesses (see Matter of Paliani v. Selapack, 178 A.D.3d 1425, 1426, 112 N.Y.S.3d 670 [4th Dept. 2019] ), we conclude that the mother established that her relationship with the father deteriorated to the point where the existing joint custody arrangement was not feasible (see Matter of Unczur v. Welch, 159 A.D.3d 1405, 1406, 72 N.Y.S.3d 680 [4th Dept. 2018], lv denied 31 N.Y.3d 909, 81 N.Y.S.3d 368, 106 N.E.3d 751 [2018] ; Matter of Ladd v. Krupp, 136 A.D.3d 1391, 1392, 24 N.Y.S.3d 834 [4th Dept. 2016] ), the father violated the prior custody and visitation order (see Matter of Moreno v. Elliott, 170 A.D.3d 1610, 1611, 94 N.Y.S.3d 500 [4th Dept. 2019] ; Matter of Green v. Bontzolakes, 111 A.D.3d 1282, 1283–1284, 974 N.Y.S.2d 211 [4th Dept. 2013] ), and the father was engaging in an ongoing effort to alienate the child from the mother...