MATTER OF ROBERT GG v. KATHLEEN HH.

• Decision Date: 29 June 2000
• Citation: 273 A.D.2d 713,710 N.Y.S.2d 176
• Parties: In the Matter of ROBERT GG., Respondent,<BR>v.<BR>KATHLEEN HH., Appellant.
• Court: New York Supreme Court — Appellate Division

273 A.D.2d 713

710 N.Y.S.2d 176

In the Matter of ROBERT GG., Respondent,

v.KATHLEEN HH., Appellant.

Mugglin, J.

Decided June 29, 2000.

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

Mugglin, J.

The parties were married in 1973. Their eldest son is emancipated. Their second son (hereinafter the son) was born in 1979 severely mentally retarded. Their daughter was born in 1982. The parties divorced in 1987 and respondent was granted custody of the children with petitioner having visitation. Respondent remarried in 1989 and she and the children lived with her new husband until August 1997, when as a result of uncontested claims that the daughter had been sexually abused by her stepfather, Family Court awarded temporary physical custody of the children to petitioner and allowed respondent visitation with the son only. In this proceeding, following an extensive fact-finding hearing, Family Court awarded petitioner sole custody of both the son and daughter, and granted respondent visitation with the son only. Respondent appeals only Family Court's custody determination regarding her son. She argues that Family Court's determination is not supported by a preponderance of the evidence. Respondent also argues that although the record reveals that she has always been a fit and loving parent to her son, she is being punished for something not her fault by Family Court's failure to examine the totality of the circumstances involved.

"It is well settled that when determining custody, the best interests of the children are paramount" (Matter of Jelenic v Jelenic, 262 AD2d 676, 677; see, Eschbach v Eschbach, 56 NY2d 167, 171). "When seeking a modification of an established custody arrangement, however, a petitioner must demonstrate a sufficient change in circumstances necessitating an alteration" (Matter of Juliano v Pollack, 256 AD2d 668, 668-669, lv denied 93 NY2d 803; see, Matter of Fairbanks v Diehl, 268 AD2d 867; Matter of Reese v Jones, 249 AD2d 676, 677). "[A] court must base its decision on the totality of the circumstances including the ages of the children, fitness of the parents, quality of the home environment, each parent's ability to provide for the child's intellectual and emotional development, and the effect of the award of custody on one parent would have on the child's relationship with the other" (Matter of Lukaszewicz v Lukaszewicz, 256 AD2d 1031, 1032-1033; see, Eschbach v Eschbach, supra, at 171-173).

Among the factors to be considered by Family Court in making custody determinations is the "duration of the present custody arrangement" (Matter of Millett v Millett, 270 AD2d 520, 521). "The Court of Appeals has cautioned that `the separation of siblings * * * is to be frowned upon'" (Matter of Donahue v Buisch, 265 AD2d 601, 604, quoting Matter of Ebert v Ebert, 38 NY2d 700, 704). "[T]his rule is not absolute [, however,] and may be overcome where * * * `the best interest of each child lies with a different parent'" (Matter of Jelenic v Jelenic, supra, at 677, quoting Matter of Copeland v Copeland, 232 AD2d 822, 823, lv denied 89 NY2d 806).

A review of the record herein, with these principles applied, reveals that Family Court held an extensive hearing during which it took evidence of the home environments of both petitioner and respondent, the relationship that each has with the children, the relationship of petitioner's wife with the children, the relationship between the siblings, the educational facilities and programs available to the son in the area where each parent now resides, the extracurricular activities available to the son in each area and the programs and...