Matter of Gorham v. Gorham

• Decision Date: 20 November 2008
• Docket Number: 504032.
• Citation: 2008 NY Slip Op 09133,56 A.D.3d 985,868 N.Y.S.2d 343
• Parties: In the Matter of HOLLY GORHAM, Respondent, v. CLIFFORD H. GORHAM, Appellant. (And Another Related Proceeding.)
• Court: New York Supreme Court — Appellate Division

56 A.D.3d 985

868 N.Y.S.2d 343

2008 NY Slip Op 09133

In the Matter of HOLLY GORHAM, Respondent, v. CLIFFORD H. GORHAM, Appellant. (And Another Related Proceeding.)

504032.

Appellate Division of the Supreme Court of the State of New York, Third Department.

November 20, 2008.

Appeal from an order of the Family Court of Clinton County (Lawliss, J.), entered November 21, 2007, which granted petitioner's applications, in two proceedings pursuant to Family Ct Act article 6, for a modification of prior orders of custody.

SPAIN, J.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of two children, a son (born in 1991) and a daughter (born in 1994). The mother resides in a rural setting in the Town of Mooers, Clinton County near her parents who—over the years—have participated in the rearing of each of the children. The father resides in the City of Troy, Rensselaer County. Under the original joint custody order, the mother retained physical custody of both children; in January 2006, the son expressed a desire to live with the father and, on consent, the father became his primary physical custodian. Approximately two months later, the father obtained physical custody of the daughter, by an order—also on consent—resolving a drug-related neglect petition brought against the mother. Thereafter, the mother filed modification petitions seeking physical custody of both children under the continuing original joint custody order, asserting that she had turned her life around and was concerned with the children's living situation at the father's urban residence. Following a hearing, Family Court found a change in circumstances and, while finding both parents to be fit, modified by awarding primary physical custody of both children to the mother. The modification was based upon, among other things, the mother's capacity to provide better and more direct parental supervision and a better living environment for both children, and the son's truancy, academic problems, and misbehavior in the community—all occurring while living with the father. The father now appeals and we affirm.

A parent seeking modification of an existing custody order bears the burden of proving that there has been a "`sufficient change in circumstances making modification necessary for the continued best interests of [the] child[ren]'" (Matter of Leo v Leo, 39 AD3d 899, 900-901 [2007], quoting Matter of Roe v Roe, 33 AD3d 1152, 1153 [2006]; see Matter of Goodfriend v Devletsah-Goodfriend, 29 AD3d 1041, 1042 [2006]). Here, the mother proffered sufficient evidence demonstrating a substantial change in circumstances requiring reconsideration of the prior custody order. Testimony from the mother's counselor revealed that she had made significant and meaningful progress in treating her marihuana addiction, and had, in fact, been in treatment for 18 months and in full abstinence for over a year at the time of the hearing. Moreover, the mother took full responsibility for her prior actions and behavior that had led to the allegations of neglect against her. The mother also successfully completed classes on parenting and how to manage a home. Her caseworker testified that she had completely reformed her ways and had become a different person than she was when the order of neglect was entered against her.

Moreover, the record reveals that, since the prior order of custody regarding the son was entered, the son's situation while residing with the father had taken a substantial turn for the worse. That is, he failed three classes in high school, skipped class quite frequently, began smoking...