Taber v. Taylor

• Decision Date: 10 April 1997
• Citation: 656 N.Y.S.2d 408,238 A.D.2d 696
• Parties: In the Matter of Mary E. TABER, Appellant, v. Randy D. TAYLOR, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 408

656 N.Y.S.2d 408

238 A.D.2d 696

In the Matter of Mary E. TABER, Appellant, v. Randy D. TAYLOR, Respondent.

Supreme Court, Appellate Division,

Third Department.

April 10, 1997.

Lauren S. Cohen, Vestal, for appellant.

Suzanne McMahon, Johnson City, for respondent.

Michael J. Sullivan, Law Guardian, Vestal, for Kristina Taylor.

Before CARDONA, P.J., and MERCURE, CASEY, SPAIN and CARPINELLO, JJ.

CASEY, Justice.

Appeal from an order of the Family Court of Broome County (Pines, J.), entered November 2, 1995, which, inter alia, granted respondent's cross application, in three proceedings pursuant to Family Court Act article 6, for modification of a prior order of custody and visitation.

By a July 1994 order, petitioner and respondent, who were never married, were awarded joint custody of their daughter, Kristina (born in 1990). Kristina primarily resided with petitioner and respondent was awarded visitation with liberal telephone contact. Alleging that respondent had sexually abused Kristina, petitioner commenced a proceeding seeking modification of the visitation aspect of the July 1994 order. Respondent thereafter commenced two proceedings alleging various violations of the July 1994 order and seeking sole custody of Kristina. After a hearing, Family Court dismissed petitioner's application and awarded respondent sole custody of Kristina, concluding, inter alia, that petitioner had made up the incidents of sexual abuse and had coached Kristina to repeat such allegations. Petitioner now appeals claiming that the evidence does not support the court's determination.

Initially, we find that, as the parties do not get along and are unable to discuss their daughter in a civilized fashion, a change from joint custody to sole custody was warranted here (see, Braiman v. Braiman, 44 N.Y.2d 584, 589-590, 407 N.Y.S.2d 449, 378 N.E.2d 1019; Matter of Davis v. Kostin, 208 A.D.2d 975, 976, 617 N.Y.S.2d 229). Having so concluded, the remaining inquiry is to which parent should sole custody be awarded (see, Matter of Hartman v. Hartman, 214 A.D.2d 780, 781, 624 N.Y.S.2d 470), keeping in mind that "the primary consideration in any custody matter is the best interest of the child" (Matter of Brown v. Skalwold, 228 A.D.2d 749, 752, 643 N.Y.S.2d 732, 734, lv dismissed 89 N.Y.2d 860, 653 N.Y.S.2d 281, 675 N.E.2d 1234; see, Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 94, 447 N.Y.S.2d 893, 432 N.E.2d 765).

Examining the totality of the circumstances, including the various factors that are to be considered in a best interest analysis (see, Young v. Young, 212 A.D.2d 114, 117-118, 628 N.Y.S.2d 957; Matter of Belden v. Keyser, 206 A.D.2d 610, 611, 614 N.Y.S.2d 477), we find that Family Court's award of sole custody of the child to respondent has a sound and substantial basis in the record (see, Matter of Beyer v. Tranelli-Ashe, 195 A.D.2d 972, 600 N.Y.S.2d 598). As Family Court found, petitioner has manipulated Kristina to further her own ends by repeatedly fabricating allegations of sexual abuse, not only against respondent, but against other members of his family. Petitioner has also disparaged respondent in front of Kristina, has denied him liberal telephone access to the child, which is specifically provided for in the prior court order, and has moved with the child without advising respondent of her new address (see, e.g., Matter of Gago v. Acevedo, 214 A.D.2d 565, 625 N.Y.S.2d 250, lv denied 86 N.Y.2d 706, 632 N.Y.S.2d 500, 656 N.E.2d 599; Matter of Betancourt v. Boughton, 204 A.D.2d 804, 806-807, 611 N.Y.S.2d 941). Such acts...