Williams v. Williams

• Decision Date: 24 December 1992
• Citation: 591 N.Y.S.2d 872,188 A.D.2d 906
• Parties: In the Matter of Pamela WILLIAMS, Appellant, v. Mark WILLIAMS, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 872

591 N.Y.S.2d 872

188 A.D.2d 906

In the Matter of Pamela WILLIAMS, Appellant, v. Mark WILLIAMS, Respondent.

Supreme Court, Appellate Division Third Department.

Dec. 24, 1992.

Walter, Thayer & Mishler, P.C. (Anita Thayer, of counsel), Albany, for appellant.

Lieberman, Koweek, Cranna, McEvoy & Walters (William F. Cranna, of counsel), Hudson, for respondent.

Before YESAWICH, J.P., and LEVINE, CREW, MAHONEY and HARVEY, JJ.

CREW, Justice.

Appeal from an order of the Family Court of Columbia County (Leaman, J.), entered April 19, 1991, which dismissed petitioner's application, in a proceeding pursuant to Family Court Act article 6, for custody of the parties' children.

The parties were married in 1977 and have two children, Rebbecca (born July 21, 1979) and Ryan (born April 12, 1981). The parties separated sometime after November 1981 and initially agreed that the children would reside with petitioner. In January 1983, the parties entered into a stipulation wherein it was agreed that the parties would have joint legal custody, with primary physical custody to petitioner and visitation to respondent. The parties were divorced in June 1983 and the stipulation was incorporated, but not merged, into the judgment of divorce. In the interim, the children returned to live with respondent due to problems that developed with petitioner's work schedule and have resided with respondent continuously since May 1983.

In January 1985, respondent married Suzanne Williams (hereinafter Williams) and thereafter commenced a proceeding seeking custody of the parties' children. The matter was settled by a stipulation executed in June 1987 wherein it was agreed that joint legal custody would continue, with primary physical custody to respondent and liberal visitation to petitioner. In September 1990, petitioner commenced this proceeding in Rensselaer County seeking custody of the parties' children; Family Court (Spain, J.) subsequently granted respondent's motion to transfer the proceeding to Columbia County. Petitioner then moved for temporary custody pending an evidentiary hearing; this motion was apparently denied. A fact-finding hearing followed and testimony was received from various witnesses. Family Court also conducted an in camera interview with the children and received a written recommendation from the Law Guardian. Family Court ultimately denied petitioner's application, finding that the children's best interest would be served by continuing the current custody arrangement. This appeal by petitioner followed.

We affirm. It is beyond dispute that the primary consideration in any custody matter is the best interest of the child (see, e.g., Matter of Pero v. Musolino, 178 A.D.2d 413, 414, 577 N.Y.S.2d 112; Matter of Dinino v. Deima, 173 A.D.2d 1017, 1018, 569 N.Y.S.2d 851; Matter of Fringo v. Riccio, 171 A.D.2d 963, 567 N.Y.S.2d 907). To that end, "alteration of an established custody arrangement will be ordered only upon a showing of sufficient change in circumstances reflecting a real need for change in order to insure the continued best interest of the child" (Matter of Van Hoesen v. Van Hoesen, 186 A.D.2d 903, 590 N.Y.S.2d 139; see, Cochran v. Cochran, 177 A.D.2d 818, 819, 576 N.Y.S.2d 432; Matter of McCauliffe v. Peace, 176 A.D.2d 382, 383, 574 N.Y.S.2d 90; Matter of Hohenforst v. Hohenforst, 169 A.D.2d 952, 953, 564 N.Y.S.2d 846). Such a determination, in turn, involves inquiry into a number of factors, including the quality of the respective home environments, the length of time the present custody arrangement has been in place and each parent's past performance, relative fitness and ability to provide for and guide the child's intellectual and emotional development (see, Matter of Van Hoesen v. Van Hoesen, supra; Fox v. Fox, 177 A.D.2d 209, 210, 582 N.Y.S.2d 863; Matter of Gitchell v. Gitchell, 165 A.D.2d 890, 894, 560 N.Y.S.2d 359). Family Court's factual findings in this regard are traditionally accorded great deference (see, Matter of Fringo v. Riccio, supra, 171 A.D.2d at 964, 567 N.Y.S.2d 907; Matter of Flynn-Stallmer v. Stallmer, 167 A.D.2d 575, 576, 563 N.Y.S.2d 207, lv. dismissed 77 N.Y.2d 939, 569 N.Y.S.2d 612, 572 N.E.2d 53) and will be set aside only where they lack a sound and substantial basis in the record (see, e.g., Matter of Pero v. Musolino, supra, 178 A.D.2d at 414, 577 N.Y.S.2d 112).

Applying these principles to the record before us, we cannot say that Family Court's decision is unsupported by the evidence. ¹ At the time of the fact-finding hearing, the children had resided with respondent, Williams and their daughter, Mari-Beth, for approximately eight years. We recognize that a prior custody arrangement is not determinative; it is, however a weighty factor to consider (see, Matter of Rozelle v. Rozelle, 184 A.D.2d 973, 975, 585 N.Y.S.2d 593; Finn v. Finn, 176 A.D.2d 1132, 1133, 575 N.Y.S.2d 591) and should be altered only in the face of countervailing circumstances (see, Fox v. Fox, supra, 177 A.D.2d at 210-211, 582 N.Y.S.2d 863; Matter of Taber v. Herlihy, 174 A.D.2d 777, 778, 570 N.Y.S.2d 723). We perceive no such circumstances here. The record reveals that petitioner and respondent are loving and concerned parents and that both the parties and their respective partners are actively involved in various aspects of the children's lives. While it is apparent that Williams has assumed many of the day-to-day caretaking responsibilities, the record does not support petitioner's claim that respondent has abdicated his parental duties. It is also apparent that petitioner and Williams have different ideas regarding the manner in which the children should be disciplined and that the children prefer the method employed by their natural mother. (Petitioner traditionally sends the children to their rooms and later discusses with them what they did wrong, whereas Williams...