Owens v. O'Brien

• Decision Date: 12 January 2012
• Citation: 2012 N.Y. Slip Op. 00144,936 N.Y.S.2d 742,91 A.D.3d 1049
• Parties: In the Matter of Arlene Tracey OWENS, Appellant, v. Michael Emmett Thomas O'BRIEN, Respondent.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00144
91 A.D.3d 1049
936 N.Y.S.2d 742

In the Matter of Arlene Tracey OWENS, Appellant,
v.
Michael Emmett Thomas O'BRIEN, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Jan. 12, 2012.

[936 N.Y.S.2d 742]

A.L. Beth O'Connor, Cortland, for appellant.

Ronald T. Walsh, Cortland, for respondent.

Natalie B. Miner, Homer, attorney for the child.

Before: SPAIN, J.P., MALONE JR., STEIN, McCARTHY and EGAN JR., JJ.

STEIN, J.

[91 A.D.3d 1049] Appeal from an order of the Family Court of Cortland County (Campbell, J.), entered November 19, 2010, which dismissed petitioner's application, in a proceeding pursuant to Family Ct. Act article 6, to modify a prior order of custody.

The parties are the parents of a son (born in 2005). In October 2009, Family Court entered an order, on consent of the parties, awarding them joint custody, with respondent (hereinafter the father) having physical placement of the child and petitioner (hereinafter the mother) having liberal visitation as the parties could agree. Soon thereafter, the mother sought to modify the order on the basis that the father was acting uncivilly towards her and she raised concerns about the father's alleged drug use. [91 A.D.3d 1050] In June 2010, Family Court entered an order, again on consent of the parties, which continued the parties' shared legal custody and the father's primary physical custody of the child, but specified the mother's parenting time.

In July 2010, the mother commenced this proceeding, alleging that the father had violated the terms of his probation ¹ by failing a drug test and that he was entering an inpatient rehabilitation program. She subsequently filed an amended petition

[936 N.Y.S.2d 743]

seeking modification of the prior custody order, which contained additional allegations regarding the child's absences from school. After a fact-finding hearing, Family Court dismissed the mother's amended petition. The mother now appeals and we affirm.

In order to warrant modification of the existing order of custody, the mother was required to demonstrate “a change in circumstances reflecting a real need for change in order to insure the continued best interest of the child” ( Matter of Joseph A. v. Jaimy B., 81 A.D.3d 1219, 1220, 917 N.Y.S.2d 737 [2011] [internal quotation marks and citations omitted] ). Not until a change in circumstances has been established is Family Court permitted to proceed to a best interest analysis ( see id. at 1221, 917...