MATTER OF MARKEY v. Bederian

• Decision Date: 20 July 2000
• Citation: 274 A.D.2d 816,710 N.Y.S.2d 482
• Parties: In the Matter of AUSTIN MARKEY, Respondent,<BR>v.<BR>SUSAN BEDERIAN, Appellant.
• Court: New York Supreme Court — Appellate Division

274 A.D.2d 816

710 N.Y.S.2d 482

In the Matter of AUSTIN MARKEY, Respondent,

v.SUSAN BEDERIAN, Appellant.

Decided July 20, 2000.

Cardona, P.J., Mercure, Spain and Lahtinen, JJ., concur.

Crew III, J.

Petitioner and respondent are the biological parents of two children, born in 1987 and 1989. The parties separated permanently in December 1992 and, insofar as is relevant to this appeal, ultimately consented in January 1995 to joint legal custody, with physical custody to respondent and visitation to petitioner.

Beginning in January 1998, petitioner filed three modification petitions alleging, inter alia, that respondent had interfered with his visitation rights, impeded his telephone access to the children and was abusing alcohol and seeking physical custody of the minor children. Following a lengthy hearing at which the parties appeared and testified and the children were interviewed in camera, Family Court granted petitioner's application and awarded petitioner sole legal and physical custody, with liberal visitation to respondent. This appeal by respondent ensued.

We affirm. As the case law makes clear, "alteration of an established custody arrangement will be ordered only upon a showing of sufficient change in circumstances reflecting a real need for change in order to insure the continued best interest of the child" (Matter of Van Hoesen v Van Hoesen, 186 AD2d 903; see, Brodsky v Brodsky, 267 AD2d 897, 898; Matter of Crawson v Crawson, 263 AD2d 656, 657).^[1] Such a change in circumstances may be demonstrated by, inter alia, a deterioration of the relationship between the joint custodial parents (see, e.g., Matter of Moreau v Sirles, 268 AD2d 811, 812, lv denied 95 NY2d 752; Matter of Gaudette v Gaudette, 262 AD2d 804, 805, lv denied 94 NY2d 790; Ulmer v Ulmer, 254 AD2d 541, 542), interference with the noncustodial parent's visitation rights and/or telephone access (see, e.g., Brodsky v Brodsky, supra, at 898-899; Matter of Betancourt v Boughton, 204 AD2d 804, 806-807) or the existence of an alcohol or substance abuse problem (see, e.g., Matter of Weeden v Weeden, 256 AD2d 831, 832, lv denied 93 NY2d 804; Matter of Mooney v Mooney, 243 AD2d 840, 841). To that end, Family Court's factual findings traditionally are accorded great deference and should be set aside only where they lack a sound and substantial basis in the record (see, Matter of Moreau v Sirles, supra, at 812; Matter of Betancourt v Boughton, supra, at 806).

Based upon our review of the record as a whole, we cannot say that petitioner failed to demonstrate a sufficient change in circumstances to trigger the best interest analysis undertaken by Family Court. In this regard, respondent argues that her demonstrated misdeeds—denying petitioner visitation on two occasions, relocating the children to a new residence and refusing to provide petitioner with their address, enrolling the children in a new school district without consulting with petitioner, failing to permit and/or facilitate telephone contact between the children and petitioner and abusing alcohol on at least two occasions—amount to nothing more than isolated incidents and fall far short of demonstrating a pattern of persistent interference or abuse. While such incidents, standing alone, indeed do not establish a persistent interference with petitioner's visitation rights, a persistent denial of telephone access to the children or a pervasive problem with alcohol,^[2] respondent's conduct does demonstrate and reflect a pattern of immature decision making and the exercise of poor judgment. Such actions, taken together and viewed in the context of the embattled and deteriorating relationship between the parties, constitute a sufficient change in circumstances to warrant modification of the then-existing custodial situation.^[3]

With respect to Family Court's best interest inquiry, the record amply supports the court's findings that the children's best interests would be served by awarding sole legal and physical custody to petitioner. The record plainly demonstrates that the parties cannot work together in a cooperative fashion,...