Matter of Nephew v. Nephew, 500965.

• Decision Date: 29 November 2007
• Docket Number: 500965.
• Citation: 2007 NY Slip Op 09455,45 A.D.3d 1194,846 N.Y.S.2d 713
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of MATTHEW C. NEPHEW, Respondent, v. KIMBERLY A. NEPHEW, Appellant.

45 A.D.3d 1194

846 N.Y.S.2d 713

2007 NY Slip Op 09455

In the Matter of MATTHEW C. NEPHEW, Respondent, v. KIMBERLY A. NEPHEW, Appellant.

500965.

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

Decided November 29, 2007.

Appeal from an order of the Family Court of Warren County (Breen, J.), entered June 14, 2006, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.

Mugglin, J.

Petitioner is the father and respondent is the mother of a son (born in 2001). In February 2003, they executed a separation agreement, later incorporated in a judgment of divorce, which provided for joint legal custody, with primary physical custody being with respondent. In November 2004, petitioner commenced this proceeding seeking modification of the custody order. Petitioner sought, and was granted, temporary custody. Following the April 2006 trial, Family Court, while continuing joint custody, modified the prior order by awarding primary physical custody of the child to petitioner, subject to scheduled visitation for respondent. Respondent appeals, arguing both that petitioner failed to establish a change of circumstances sufficient to warrant modification of the prior order and that awarding primary physical custody to petitioner is not in the child's best interests. We disagree with both assertions and affirm.

While a previously stipulated arrangement will be accorded less weight than a decision rendered by a court following a plenary trial (see Matter of Mehaffy v Mehaffy, 23 AD3d 935, 936 [2005], lv dismissed 6 NY3d 807 [2006]), a parent seeking modification of an existing custody order always bears the burden of proving that there has been a sufficient change of circumstances "`making modification necessary for the continued best interests of [the] child'" (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]).

Petitioner's evidence established that since the prior custody order, respondent was arrested for a second driving while intoxicated offense in November 2004, she was hospitalized for a drug overdose, she admitted herself to a recovery program and she started attending Alcoholics Anonymous meetings. She also became involved in a drug court treatment program during which she tested positive for cocaine use and was sent to a residential treatment facility for six months. Upon her discharge, she resided at a half-way house and continued to attend outpatient rehabilitation care to focus on maintaining sobriety which, by her own admission, was the most important priority in her life, even above her concerns for her child. Beyond question, petitioner...