Whitcomb v. Seward
| Decision Date | 14 July 2011 |
| Docket Number | 510210 |
| Parties | In the Matter of HOPE E. WHITCOMB, Appellant, v. CLAUDE D. SEWARD, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Before: Mercure, J.P., Spain, Kavanagh, Garry and Egan Jr., JJ.
Teresa C. Mulliken, Harpersfield, for appellant.
Ted J. Stein, Woodstock, for respondent.
Daniel Gartenstein, Kingston, attorney for the child.
Appeal from an order of the Family Court of Sullivan County (Ledina, J.), entered June 8, 2010, which partially dismissed petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father), residents of Sullivan County who never married, are the parents of a daughter, born in 2000. Pursuant to a 2001 order of custody, entered upon consent, the parties had joint legal and shared physical custody; the child, then an infant, alternated living with each parent, three nights with the father (Saturday to Tuesday) and then four nights with the mother (Tuesday to Saturday). The mother was also given one full weekend per month, and the parties agreed to "share the [h]oliday[s] as mutually agreed" with specific provisions for birthdays and Mother's/Father's Day. Thereafter, the mother lived in various places including out of state, and the parties followed a different mutually agreed to schedule — never reduced to a court order — in which the child alternated two weeks with each parent. In 2005, the mother returned to Sullivan County. In 2007, the 2001 order was tentatively modified on the father's petition, by providing that joint legal custody would continue but, in the event the mother relocated, the father would be granted primary physical custody with a parenting time schedule outlined for the mother. The mother never relocated.
In April 2008, the mother commenced this proceeding for modification of the 2001 order, seeking primary physical custody of the child, then seven years old, to allow more time with the mother's family and the child's school friends, claiming that the father lacked the time and resources to maintain the child's lifestyle. She requested that the father's parenting time be reduced to alternating weekends, which the father strongly opposed. After a two-day hearing and a Lincoln hearing with the child, Family Court continued joint legal custody, but modified the 2001 order to provide that the child will alternate weeks with each parent (Tuesday to Tuesday) to allow "each parent significant[,] uninterrupted parenting time with the child in approximately equal shares." The court also established a specific and comprehensive holiday/summer schedule, which is operative if the parties remain unable to agree on how to share this time. The mother now appeals, arguing that the court's modification order was an abuse of discretion because she is the "more suitable parent" and better able "to provide the child with a stable home." We disagree, and affirm.
As a threshold matter, "the alteration of an established custody arrangement will be ordered only upon a showing of a sufficient change in circumstances reflecting a real need for change in order to insure the continued best interest of the child" (Matter of Passero v Giordano, 53 AD3d 802, 803 [2008] [internal quotation marks and citation omitted]). Under that test, an order entered on consent, without a plenary hearing, is entitled to less weight (see Redder v Redder, 17 AD3d 10, 13 [2005]). While Family Court made no express finding on the existence of a change in circumstances, remittal is not necessary given that the hearing record is complete, the court made significant factual findings, and our Court has authority to independently review the record, which fully supports the existence of the requisite change in circumstances (see Matter of Troy SS. v Judy UU., 69 AD3d 1128, 1130 [2010], lv dismissed and denied 14 NY3d 912 [2010]; Matter of Cree v Terrance, 55 AD3d 964, 965-966 [2008], lv denied 11 NY3d 714 [2008]).
Foremost, the parties long ago effectively abandoned the parenting schedule in the 2001 order, having crafted various schedules as their circumstances changed (see Matter of Kilmartin v Kilmartin, 44 AD3d 1099, 1101 [2007]). The 2001 order did not contain a detailed holiday/summer schedule, which the parties presently desire and need given their disagreement regarding how to resolve holidays falling during one parent's custodial time. Further, the parties developed materially differing parenting styles that now present some adverse consequences for the child; the mother scheduled the child for numerous daily organized activities, without consulting the father, which the child reportedly does not attend during her time with the father, 1 causing detriment to the child. Adopting the court's factual findings, we find that a change in circumstances was demonstrated.
Family Court's determination modifying the parties' parenting time is supported by a sound and substantial basis in the record (see Matter of Seacord v Seacord, 81 AD3d 1101, 1104 [2011]). Since 2007, the parties had employed an irregular custodial schedule in which each month the child lived with her mother a total of 16 nights, including one weekend, and with her father 10 nights, including two consecutive weekends; while she spent only four consecutive nights away from her mother, she spent 10 consecutive nights without her father.
The proof at the hearing demonstrated that both parties love and care for the child; both desire to be with her as much as possible and cultivate her relationship with their own partners, parents and extended families. Neither raised allegations regarding the parenting skills or home environment of the other and both give the child significant attention during their custodial time, albeit in different manners. At the time of the 2008 hearing, the mother and her partner continued to live with...
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