Jamie UU. v. Dametrius VV.

• Decision Date: 01 July 2021
• Docket Number: 529447
• Citation: 151 N.Y.S.3d 221,196 A.D.3d 759
• Parties: In the Matter of JAMIE UU., Appellant, v. DAMETRIUS VV., Respondent.
• Court: New York Supreme Court — Appellate Division

196 A.D.3d 759

151 N.Y.S.3d 221

In the Matter of JAMIE UU., Appellant,

v.DAMETRIUS VV., Respondent.

529447

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

Calendar Date: May 25, 2021

Decided and Entered: July 1, 2021

Ivy M. Schildkraut, Rock Hill, for appellant.

Donna Maria Lasher, Rock Hill, for respondent.

Jacqueline Ricciani, Monticello, attorney for the child.

Before: Garry, P.J., Egan Jr., Clark, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.

Appeal from an order of the Family Court of Sullivan County (McGuire, J.), entered July 2, 2019, which partially dismissed petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody and visitation.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of a child (born in 2012). By order entered July 17, 2019, Family Court awarded the parents joint legal custody of the child and the father primary physical custody of the child, with parenting time to the mother from Saturday at 8:00 a.m. until Monday morning, when the child is brought to school, and during certain holidays and summer vacation. In November 2018, the mother commenced this custody modification proceeding seeking primary physical custody of the child, alleging that she had recently moved to a new residence and obtained new employment. Family Court entered a temporary order of parenting time, expanding the mother's parenting time from Friday when the child finishes school until Monday morning when the child returns to school. Following a fact-finding hearing and a Lincoln hearing, Family Court continued the award of joint legal custody, with the father maintaining primary physical custody, but modified the order to provide the mother with additional parenting time from Thursday, when the child finishes school, until Monday morning, when the child returns to school. The mother appeals.¹

Initially, the parties do not dispute that the mother demonstrated a change in circumstances since entry of the prior custody order in July 2018 and, therefore, our inquiry focuses on whether Family Court's determination served the best interests of the child (see Matter of Christie BB. v. Isaiah CC., 194 A.D.3d 1130, 1131, 149 N.Y.S.3d 280 [2021] ; Matter of Sherrod U. v. Sheryl V., 181 A.D.3d 1069, 1069, 120 N.Y.S.3d 517 [2020] ). When making a best interests determination, the court must consider, among other factors, the quality of each parent's home environment, the need for stability in the child's life, the parents’ past performance, the willingness of each parent to foster a positive relationship between the child and the other parent and the ability to provide for the child's intellectual and emotional development and overall well-being (see Zachery VV. v. Angela UU., 192 A.D.3d 1220, 1222–1223, 142 N.Y.S.3d 656 [2021] ; Matter of Sandra R. v. Matthew R., 189 A.D.3d 1995, 1997, 137 N.Y.S.3d 824 [2020], lv dismissed and denied 36 N.Y.3d 1077, 142 N.Y.S.3d 875, 166 N.E.3d 1053 [2021] ). Great deference is accorded to Family Court's factual findings and credibility determinations, and they will not be disturbed if supported by a sound and substantial basis in the record (see Matter of Austin ZZ. v. Aimee A., 191 AD3d 1134, 1136, 142 N.Y.S.3d 122 [2021] ; Matter of Kenda UU. v. Nicholas VV., 173 A.D.3d 1295, 1298, 103 N.Y.S.3d 613 [2019] ).

The evidence at the fact-finding hearing demonstrated that both parents have a loving relationship with the child and have demonstrated an ability to care and provide for the child's day-to-day needs. Although the mother moved numerous times in the years preceding the fact-finding hearing, since entry of the prior custody order she moved from the City of Middletown, Orange County to South Fallsburg, Sullivan County – a significantly closer distance to the father's apartment in the Village of Monticello, Sullivan County. She presently resides in a two-bedroom duplex where the child has her own bedroom and has obtained employment as a waitress where she works from 9:00 a.m. to 2:00 p.m. every day except Monday and Friday. The father works for Sullivan County ARC and resides in a three-bedroom apartment, which he shares with his girlfriend, her daughter, their two sons and the subject child, with the child sharing a bedroom with the girlfriend's daughter. After the father obtained primary physical custody, the child began attending school in the Monticello school district and, by all accounts, is well-adjusted, has developed friendships and is doing well academically. ²

Both the mother and the father help the child with her homework, are engaged with the child's school and have attended school events.

The crux of the parents’ issues since the father obtained primary physical custody stem from their inability to effectively communicate regarding the child's medical and dental appointments and extracurricular activities, for which neither party is without blame. Although the parties demonstrated that they can effectively communicate via text message for purposes of custodial exchanges, the child...