State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: October 29, 2015 519407
____________________________________
In the Matter of TREVOR
ZAHURANEC,
Respondent,
v
NICOLE E. ZAHURANEC,
Appellant.
(Proceeding No. 1.)
(And Two Other Related Proceedings.)
____________________________________ MEMORANDUM AND ORDER
In the Matter of NICOLE E.
ZAHURANEC,
Appellant,
v
TREVOR ZAHURANEC,
Respondent.
(Proceeding No. 4.)
(And Another Related Proceeding.)
___________________________________
Calendar Date: September 8, 2015
Before: McCarthy, J.P., Egan Jr., Rose and Clark, JJ.
__________
Pamela B. Bleiwas, Ithaca, for appellant.
Margaret McCarthy, Ithaca, for respondent.
Robin Abrahamson Masson, Ithaca, attorney for the child.
__________
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Egan Jr., J.
Appeal from an order of the Family Court of Chemung County
(Brockway, J.), entered January 24, 2014, which, among other
things, granted petitioner's application, in proceeding No. 2
pursuant to Family Ct Act article 6, for modification of a prior
order of custody.
Trevor Zahuranec (hereinafter the father) and Nicole E.
Zahuranec (hereinafter the mother) are the divorced parents of a
child born in 2005. By order dated April 18, 2012, the parties
stipulated that they would share joint legal and physical custody
of their daughter and established an alternating schedule for
parenting time. Difficulties quickly developed and, in June
2012, the father commenced the first two of these proceedings –
one seeking to enforce the terms of the April 2012 order and the
other seeking modification thereof. An additional
enforcement/violation petition was filed by the father in
November 2012, in response to which the mother cross-petitioned
for modification of the prior order and commenced an enforcement
proceeding of her own. A fact-finding hearing and a Lincoln
hearing ensued, at the conclusion of which Family Court, insofar
as is relevant here, granted the father's application for
modification of the prior custody order, awarded the father sole
legal and physical custody of the child and established a
visitation schedule for the mother. Family Court also dismissed
the parties' respective enforcement/violation petitions. This
appeal by the mother ensued.
The mother, as so limited by her brief, contends that
Family Court's award of sole legal and physical custody to the
father lacks a sound and substantial basis in the record. We
disagree and, accordingly, affirm Family Court's order.
"A parent seeking to modify an existing custody order bears
the burden of demonstrating a sufficient change in circumstances
since the entry of the prior order to warrant modification
thereof in the child's best interests" (Matter of Dornburgh v
Yearry, 124 AD3d 949, 950 [2015] [internal quotation marks,
brackets and citations omitted]; accord Matter of Palmatier v
Carman, 125 AD3d 1139, 1139 [2015]). The required change in
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circumstances, in turn, may be found to exist where "the parties'
relationship has deteriorated to a point where there is no
meaningful communication or cooperation for the sake of the
child" (Matter of Paul A. v Shaundell LL., 117 AD3d 1346, 1348
[2014], lv dismissed and denied 24 NY3d 937 [2014]; see Matter of
Sonley v Sonley, 115 AD3d 1071, 1072 [2014]). Here, the mother
readily acknowledged that she and the father "cannot seem to get
along on certain issues" – as evidenced by, among other things,
the parties' disparate views on the child's religious upbringing,
her celebration of certain holidays and the need for her to be
engaged in counseling – and candidly testified that she wished to
have "minimal" contact with the father. In view of the apparent
animosity between the parties and their demonstrated inability to
work in a cooperative fashion for the sake of their daughter,
Family Court properly concluded that the father had demonstrated
the required change in circumstances, thereby triggering a best
interests inquiry.
Having concluded that joint custody no longer was feasible,
Family Court was left to fashion a custodial arrangement that
would be in the child's best interests. Upon considering, among
other things, "each parent's ability to furnish and maintain a
suitable and stable home environment for the child, past
performance, relative fitness, ability to guide and provide for
the child's overall well-being and willingness to foster a
positive relationship between the child and the other parent"
(Matter of Bailey v Blair, 127 AD3d 1274, 1276 [2015] [internal
quotation marks, brackets and citations omitted]), as well as the
transcript of the Lincoln hearing (see Matter of Shokralla v
Banks, 130 AD3d 1263, 1265 [2015]), we are satisfied that Family
Court's decision to award sole legal and physical custody to the
father and specified visitation to the mother has a sound and
substantial basis in the record. The father, a self-employed
general contractor, and his wife, a substitute school teacher,
testified at length regarding their work schedules, home life,
religious practices, involvement in the child's education and
activities that they engage in as a family. Based upon this
testimony, which Family Court recounted in great detail in its
written decision, the court concluded that the father – with his
flexible work schedule, established daily routine and "child-
centered" approach to raising his daughter – could provide the
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child with a more stable and consistent home environment.1
Additionally, given the mother's demonstrated animosity toward
the father, Family Court reasoned that the father would be the
parent who was more likely to foster a positive relationship
between the child and her noncustodial parent. Granting due
deference to Family Court's credibility determinations (see
Matter of Gilbert v Gilbert, 128 AD3d 1286, 1287 [2015]), we
discern no basis upon which to disturb the underlying award of
custody.
McCarthy, J.P., Rose and Clark, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court
1
Notably, rather than providing Family Court with
specific information regarding her relationship with her daughter
and the quality of the home environment that she could provide,
the mother devoted the bulk of her testimony at the hearing to
highlighting the father's perceived parental shortcomings.