State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 8, 2015 518264
_____________________________________
In the Matter of ROBERT W.
HARLOST,
Respondent,
v
MEMORANDUM AND ORDER
CHRISTY L. CARDEN,
Appellant.
(And Four Other Related Proceedings.)
_____________________________________
Calendar Date: November 12, 2014
Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ.
__________
Samuel D. Castellino, Big Flats, for appellant.
Judith E. Osburn, Binghamton, for respondent.
Marcy L. Cox, Endwell, attorney for the children.
__________
McCarthy, J.P.
Appeal from an amended order of the Family Court of Broome
County (Connerton, J.), entered December 23, 2013, which, among
other things, granted petitioner's application, in five
proceedings pursuant to Family Ct Act article 6, for modification
of a prior order of custody and visitation.
Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the parents of two children (born in
2002 and 2005). A July 2011 order granted the mother sole legal
custody and primary physical custody, with the father receiving
certain visitation. In August 2012, the father commenced the
-2- 518264
first of these proceedings seeking a modification so that he
would receive primary physical custody. Following a hearing on
the numerous petitions that were then filed by both parties,
Family Court found that the mother had willfully violated the
prior order and awarded the father custody, with certain
visitation to the mother. The mother appeals.
We affirm. It is undisputed that the father did not
receive his court-ordered visitation for approximately three
months. Family Court credited the testimony supporting a finding
that the visitation did not take place due to the mother's
desires and actions, rather than the children's wishes, showing
her willingness to place her own interests above those of the
children. The record also supports the court's conclusion that
the mother undermined the children's relationship with the father
and prevented them from seeing him or talking to him on the
phone, and that the father would be more likely to foster a
positive relationship with the other parent. "Evidence that the
custodial parent intentionally interfered with the noncustodial
parent's relationship with the [children] is so inconsistent with
the best interests of the [children] as to, per se, raise a
strong probability that [the offending party] is unfit to act as
custodial parent" (Matter of Youngok Lim v Sangbom Lyi, 299 AD2d
763, 764 [2002] [internal quotation marks and citations omitted];
accord Matter of Dobies v Brefka, 83 AD3d 1148, 1151 [2011]).
Giving deference to the court's credibility determinations, the
record contains a sound and substantial basis to support the
order transferring custody to the father (see Matter of Greene v
Robarge, 104 AD3d 1073, 1075-1077 [2013]; Matter of Dobies v
Brefka, 83 AD3d at 1149-1151; Matter of Passero v Giordano, 53
AD3d 802, 803-804 [2008]).
Egan Jr., Devine and Clark, JJ., concur.
-3- 518264
ORDERED that the amended order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court