Sellen v. Wright
| Decision Date | 11 July 1996 |
| Parties | In the Matter of Ernest L. SELLEN Jr., Respondent, v. Linda W. WRIGHT, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Alyssa L. Talanker, Albany, for appellant.
James P. Roman, Chittenango, for respondent.
Paul H. Hadley, Law Guardian, Waterville, for Jason Wimer.
Before CARDONA, P.J., and MIKOLL, CREW, YESAWICH and SPAIN, JJ.
Appeal from an order of the Family Court of Madison County (Humphreys, J.), entered April 20, 1995, which granted petitioner's application, in a proceeding pursuant to Family Court Act article 6, for custody of Jason Wimer.
The parties have a son who was born in 1984. 1 At all times prior to the commencement of the instant proceeding, Jason was in custody of respondent; petitioner exercised weekend visitation, which had been expanded to include Thursday nights. Petitioner filed the instant petition alleging that Jason was engaged in self-destructive behavior and that respondent was unwilling and/or unable to meet his needs; Family Court granted petitioner temporary custody pending a hearing. After a hearing at which both parties and Jason's Law Guardian had an opportunity to present evidence, and a Lincoln hearing, Family Court determined that the best interest of Jason dictated a change of custody and therefore granted the petition. Respondent appeals.
It is beyond cavil that the paramount consideration in any custody matter is the best interest of the child (see, Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 94, 447 N.Y.S.2d 893, 432 N.E.2d 765; Matter of Van Hoesen v. Van Hoesen, 186 A.D.2d 903, 590 N.Y.S.2d 139; Hathaway v. Hathaway, 175 A.D.2d 336, 572 N.Y.S.2d 92) and any modification of a preexisting custody arrangement will only be made upon a showing of a change in circumstances which reflects a real need for change to ensure the best interest of the child (see, Matter of Lizzio v. Jackson, 226 A.D.2d 760, 640 N.Y.S.2d 330; Matter of Williams v. Williams, 188 A.D.2d 906, 591 N.Y.S.2d 872; Matter of Van Hoesen v. Van Hoesen, supra; see also, Family Ct. Act § 652[a] ). The factors included in any inquiry of the requisite change in circumstances include the parent's fitness and ability to provide for the child's intellectual, emotional and psychological development, the length and quality of the preexisting custody arrangement, the quality of the parent's home environment and the child's prospects for the future (see, Matter of Lizzio v. Jackson, supra; Matter of Irwin v. Neyland, 213 A.D.2d 773, 623 N.Y.S.2d 18). Applying those rules of law to the instant matter, we conclude that the record fully supports Family Court's determination.
The record reveals that respondent had been unwilling to participate in Jason's intellectual or psychological development. Jason's fourth and fifth grade teachers testified that the child was unprepared for class, was underachieving and that it was difficult and sometimes impossible for them to communicate with respondent. The teachers further testified that after Jason's regular weekend visitation with petitioner the child's homework would be complete, unlike during the week when he was with respondent.
Most disturbing, however, is respondent's lack of understanding and unwillingness to cope with Jason's psychological problems. The school psychologist testified that he conducted a psychological evaluation of Jason which revealed that he had average intelligence and low self-esteem. The psychologist further testified that following a second evaluation a year later, Jason talked about having suicidal thoughts. The psychologist expressed immediate concern and made a genuine effort to contact respondent, to no avail. The school counselor testified that she attempted to communicate with respondent regarding disturbing notes that Jason had written; the counselor wanted him involved in a mentoring program. The counselor's attempt to communicate with respondent was unsuccessful; however, petitioner was very interested in participating in counseling with Jason.
The record reveals that petitioner played the instrumental role in accessing appropriate counseling and also reveals that petitioner had an excellent employment history, had made adequate accommodations for...
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