Tarrant v. Ostrowski

• Decision Date: 15 June 2012
• Citation: 2012 N.Y. Slip Op. 04872,96 A.D.3d 1580,947 N.Y.S.2d 726
• Parties: In the Matter of Daniel TARRANT, Petitioner–Respondent, v. Shannon OSTROWSKI, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 1580

947 N.Y.S.2d 726

2012 N.Y. Slip Op. 04872

In the Matter of Daniel TARRANT, Petitioner–Respondent,

v.Shannon OSTROWSKI, Respondent–Appellant.

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

June 15, 2012.

Dominic Paul Candino, Buffalo, for Respondent–Appellant.

Venzon Law Firm PC, Buffalo (Catharine M. Venzon of Counsel), for Petitioner–Respondent.

Mindy L. Marranca, Attorney for the Children, Buffalo, for Olivia T. and Dominic T.

PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND MARTOCHE, JJ.

MEMORANDUM:

Respondent mother appeals from an order modifying the parties' existing custody arrangement by transferring physical custody of the parties' two children to petitioner father and granting the father sole custody of the children. The parties have had joint custody of the children with primary physical custody with the mother since February 24, 2010, pursuant to an order incorporating the parties' January 5, 2010 written custody agreement. In addition, Family Court adjudicated the mother to have violated prior court orders.

We reject the mother's contention that the court erred in determining that she willfully violated one or more prior court orders. Deferring as we must to the court's findings of fact, which are supported by a “sound and substantial basis in the record” (Matter of Alice A. v. Joshua B., 232 A.D.2d 777, 779, 648 N.Y.S.2d 729), as well as its resolution of issues of credibility, we conclude that there was the requisite clear and convincing evidence to support the finding that the mother willfully violated a prior court order by preventing the father from receiving custodial access to the children in April 2010 ( see generally Matter of Seacord v. Seacord, 81 A.D.3d 1101, 1103, 916 N.Y.S.2d 664). That custodial access was set forth in the parties' January 5, 2010 custody agreement, which in turn was incorporated in the court's order of February 24, 2010.

We also reject the mother's contention that the court erred in considering testimony regarding matters that predated the aforementioned custody agreement and order. In custody cases, “Family Court is afforded broad discretion in establishing the parameters of the proof at trial and, if necessary, may extend it to all relevant matters” (Matter of Gardner v. Gardner, 69 A.D.3d 1243, 1244, 893 N.Y.S.2d 698). Here, the court explained that background information regarding the nature of the parties' relationship prior to the custody order and the circumstances surrounding their separation was required, to enable the court to understand the reluctance of the older child to spend time with the father and to make a more informed decision on the father's instant modification petition. Because the testimony in question provided the court with a baseline from which to assess whether there was a change in circumstances and permitted the court to conduct a more complete assessment of the best interests of the children, we conclude that the court did not abuse its discretion in considering such testimony. Contrary to the mother's further contention, such testimony was not barred by res judicata or collateral estoppel.

Turning to the merits of the mother's challenge to the transfer of custody, we note that “alteration of an established custody arrangement will be ordered only upon a showing of a change in circumstances which reflects a real need for change to ensure the best interest[s] of the child[ren]” ...