MATTER OF MILLETT v. Millett

• Decision Date: 02 March 2000
• Citation: 270 A.D.2d 520,703 N.Y.S.2d 596
• Parties: In the Matter of ELIZABETH D. MILLETT, Respondent,<BR>v.<BR>WILLIAM F. MILLETT, Appellant.
• Court: New York Supreme Court — Appellate Division

270 A.D.2d 520

703 N.Y.S.2d 596

In the Matter of ELIZABETH D. MILLETT, Respondent,

v.WILLIAM F. MILLETT, Appellant.

Graffeo, J.

Decided March 2, 2000.

Mercure, J. P., Crew III, Peters and Spain, JJ., concur.

Graffeo, J.

After the parties' divorce, a Family Court order was entered in July 1996 granting the parties joint custody of their two sons, with petitioner having primary physical custody and respondent having visitation on alternate weekends. Petitioner commenced this proceeding in March 1997 seeking to modify the visitation order to limit respondent's visitation to Saturdays from 9:00 A.M. to 5:00 P.M., alleging that respondent mentally abused the children. At the conclusion of a hearing, Family Court determined that joint custody was no longer appropriate and found that unsupervised visitation with respondent was not in the best interests of the children. Accordingly, petitioner was awarded sole custody and respondent was limited to visitation as arranged by the children's therapist. Respondent now appeals.

It is axiomatic that the best interests of the children are paramount when determining custody issues (see, Eschbach v Eschbach, 56 NY2d 167; Matter of Farnham v Farnham, 252 AD2d 675). With respect to a proceeding seeking a modification of an established custody arrangement, however, it must be shown that a change of circumstances warrants an alteration (see, Matter of Reese v Jones, 249 AD2d 676; Matter of Karpensky v Karpensky, 235 AD2d 594). In making this determination, the factors to be considered include the duration of the present custody arrangement, the relevant fitness of each parent and their respective ability to provide for the child's emotional and intellectual development (see, Matter of Russo v Russo, 257 AD2d 926, 927; Matter of Machukas v Wagner, 246 AD2d 840, lv denied 91 NY2d 813).

Here, the Law Guardian presented the testimony of a social worker who had been working with the children since early 1997 and who met individually with the boys every other week. She testified that one child had manifestations of obsessive compulsive disorder, anxiety, nightmares and bedwetting when she first began seeing him. He exhibited improvement, but his bedwetting and anxiety resurfaced after an incident in the school playground when he thought he saw respondent's car and became upset that respondent might be watching him. Additionally, the social worker noted that the children experienced further episodes of anxiety, such as when respondent declared that he was going to throw one son in the basement with rats.

Furthermore, the psychiatric evaluation of the entire family ordered by Family Court concluded that respondent was in need of mental health intervention and that he constantly involved the children in his preoccupation with past disputes. The psychiatrist opined that the best interests of the children necessitated that joint custody be terminated and respondent's visitation be supervised. Respondent was described as having a preoccupation with the alleged molestation of one of his sons by another child, whom respondent also blamed for his son's physical disabilities. A psychological...