MATTER OF BLANCHARD v. Blanchard

• Decision Date: 24 April 2003
• Parties: In the Matter of ANN E. BLANCHARD, Appellant,<BR>v.<BR>DAVID M. BLANCHARD, Respondent.
• Court: New York Supreme Court — Appellate Division

304 A.D.2d 1048

758 N.Y.S.2d 206

In the Matter of ANN E. BLANCHARD, Appellant,

v.DAVID M. BLANCHARD, Respondent.

Decided April 24, 2003.

Mercure, Carpinello, Lahtinen and Kane, JJ., concur.

Cardona, P.J.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) married in 1993. The parties have two children, Matthew (born in 1994) and Rachel (born in 1996). In July 1999, by temporary order entered upon consent, the parties stipulated to share joint legal custody with primary physical residence of the children with the mother subject to the father's exercise of physical custody every other weekend from Friday at 6:00 P.M. until Sunday at 6:00 P.M., with alternating Mondays and Wednesdays one week and Tuesdays and Thursdays the following week, from 5:00 P.M. to 8:00 P.M. and "such other further and different custodial access as the parties shall mutually agree." Thereafter, by further stipulation, the parties incorporated this temporary order in their judgment of divorce entered March 8, 2000.

In January 2001, the mother filed two petitions, the first to enforce the parties' divorce judgment and the second to modify it, both essentially seeking to compel the father to notify her prior to having the children's hair cut and requiring him to transport them both ways when exercising his custodial access. In February 2001, the father also filed two petitions. The first sought enforcement of the divorce judgment alleging a missed weekday period of custodial access and to require notification of the children's whereabouts when they are not in school. The second sought modification of the custody provision of the divorce judgment to, inter alia, change primary physical custody from the mother to him.

The petitions were consolidated for trial. Family Court dismissed the enforcement petitions and modified custody by awarding the father sole legal custody of the children and granted the mother certain visitation. On appeal, the mother contends, inter alia, that the father failed to demonstrate sufficient changed circumstances to warrant modification of the existing custodial arrangement.

We have noted that "[w]here a voluntary agreement of joint custody is entered into, it will not be set aside unless there is a sufficient change in circumstances * * * and unless the modification of the custody agreement is in the best interests of the children" (Matter of Gaudette v Gaudette, 262 AD2d 804, 805 [1999], lv denied 94 NY2d 790 [1999]; see Matter of Harper v Jones, 292 AD2d 649, 650 [2002]). A finding that "`the relationship between joint custodial parents [has] deteriorate[d] "to the point where they simply cannot work together in a cooperative fashion for the good of their children"'" (Matter of Harper v Jones, supra at 650, quoting Ulmer v Ulmer, 254 AD2d 541, 542 [1998], quoting Matter of Jemmott v Jemmott, 249 AD2d 838, 839 [1998], lv denied 92 NY2d 809 [1998]) establishes "a sufficient change in circumstances to warrant modification of the parties' prior custody agreement" (Matter of Jemmott v Jemmott, supra at 839). The focus then shifts to the award of custody based upon the determination of best interests (id. at 839).

Here, Family Court found that the parties could no longer communicate to make joint custody feasible. Our review of the record, as a whole, does not support that conclusion. Although there is no doubt that the parties have had difficulties communicating at times, it is our opinion that their relationship is not "`so acrimonious that they are incapable of putting aside their differences'" (Webster v Webster, 283 AD2d 732, 734 [2001], quoting Matter of Meres v Botsch, 260 AD2d 757, 759 [1999]). For example, since the father had most of the summer of 2001 off, the parties' agreed that he would have the children during the mother's custodial periods while she worked. They also concurred on separate summer vacations with the children. The parents worked out additional access for some special activities for the father with the children, as for example, certain sporting events and family functions. The mother consented to his request to change their daughter's preschool, specifically testifying that she thought it was in her best interest. We note respondent's wife testified that in the month preceding the hearing, she observed that the parties were able to communicate and agree on issues. Significantly, the father testified that he respected the mother as a person and expressed confidence that he would eventually be able to work with her regarding the children. In short, given the existence of a modicum of communication and cooperation (cf. Matter of Barber v Stanley, 260 AD2d 744 [1999]), the fact that both parties are fit and loving parents and demonstrate a strong desire to share in the upbringing of their children (see Matter of Meres v Botsch, supra at 758; Palmer v Palmer, 223 AD2d 944, 945 [1996]), we find that their relationship has not so deteriorated that they cannot work together in a cooperative fashion for the good of their children. Therefore, we conclude that joint custody should continue.

There is, nevertheless, a sufficient change in circumstances warranting modification of the father's physical custodial access (see Matter of Darrow v Burlingame, 298 AD2d 651, 652 [2002]). Given the length of his involvement with both children,...