State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 7, 2016 519232
_________________________________
In the Matter of COLLEEN GG.,
Appellant,
v MEMORANDUM AND ORDER
RICHARD HH.,
Respondent.
(And Another Related Proceeding.)
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Calendar Date: November 20, 2015
Before: Lahtinen, J.P., McCarthy, Egan Jr., Lynch and Clark, JJ.
__________
Lisa K. Miller, McGraw, for appellant.
Paul G. Madison, Stamford, for respondent.
Walter J. Burkard, Fayetteville, attorney for the child.
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Egan Jr., J.
Appeal from an order of the Family Court of Chenango County
(Revoir Jr., J.), entered June 19, 2014, which, among other
things, in a proceeding pursuant to Family Ct Act article 6,
modified a prior order of custody and visitation.
Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the parents of a daughter (born in
2010). Pursuant to an order entered upon consent in Saratoga
County in August 2012, Family Court (Powers, J.) awarded the
parties joint legal custody with primary physical custody to the
father and specified periods of unsupervised visitation to the
mother. Difficulties quickly developed, prompting both parties
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to seek the assistance of law enforcement and resulting in the
filing of numerous violation and/or modification petitions by the
mother, as well as the issuance of subsequent orders modifying
the mother's visitation with the child. Ultimately, in December
2013, the parties agreed that the then sole remaining violation
petition filed by the mother would be treated as a modification
petition, and the matter was scheduled for a hearing in April
2014. Pending that hearing, Family Court (Revoir Jr., J.) and
the parties agreed that the order entered in August 2012 would
remain in effect and that any change in circumstances would be
measured from the effective date thereof.
Shortly thereafter, the mother moved by order to show cause
seeking temporary custody of the child – claiming that the
paternal grandfather had inappropriately touched the child while
the child was in her father's care. The scheduled fact-finding
hearing ensued, during the course of which the mother filed
another violation petition – contending that the father was
depriving her of scheduled visitations with the child. Following
a lengthy hearing, Family Court, among other things, awarded the
father sole legal and physical custody of the child with extended
visitation to the mother. The mother now appeals.
Preliminarily, to the extent that the mother now argues
that Family Court erred in treating her initial violation
petition as a petition to modify the August 2012 order of
custody, we need note only that Family Court expressly advised
the parties of its decision in this regard well in advance of the
fact-finding hearing, and no one – including the mother – raised
any objection to that procedure. Indeed, both parties thereafter
offered extensive testimony as to the feasibility of the then
existing custody order – with the mother taking the position that
the joint legal custody arrangement outlined therein no longer
was workable. Accordingly, we deem this issue to be unpreserved
for our review (see generally Matter of Perry v Surplus, 112 AD3d
1077, 1080 [2013]).
"A parent seeking to modify an existing custody order first
must demonstrate that a change in circumstances has occurred
since the entry thereof that is sufficient to warrant the court
undertaking a best interests analysis in the first instance;
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assuming this threshold requirement is met, the parent then must
show that modification of the underlying order is necessary to
ensure the child's continued best interests" (Matter of
Menhennett v Bixby, 132 AD3d 1177, 1179 [2015] [citations
omitted]; accord Matter of Gerber v Gerber, 133 AD3d 1133, 1136
[2015]).1 Evidence that the parties' relationship has
deteriorated to the point where they are incapable of working
together in a cooperative fashion for the good of their child
will be sufficient to establish the requisite change in
circumstances (see Matter of Schlegel v Kropf, 132 AD3d 1181,
1182 [2015]; Matter of Zahuranec v Zahuranec, 132 AD3d 1175, 1176
[2015]; Matter of DiMele v Hosie, 118 AD3d 1176, 1177 [2015]).
Without recounting the extensive testimony on this point, suffice
it to say that the record as a whole reflects a level of
hostility and mutual distrust between the parties that precludes
any form of joint decision making. Accordingly, we have no
quarrel with Family Court's finding that joint custody simply is
not feasible here.
As to the award of primary physical custody, Family Court
was faced with the difficult task of choosing between two loving
but less than exemplary parents. Although the parties both were
employed at the time of the hearing, had secured appropriate
housing and were possessed of sufficient resources to meet the
child's basic needs, they also had a long-standing history of
routinely involving law enforcement officials or child protective
services in their custody dispute. While such intervention
purportedly was sought on an as-needed basis in an effort to
safeguard the child's best interests, the frequency with which
the mother and the father chose to involve third parties –
including school officials and medical providers – in these
matters suggests a calculated effort on the part of each to gain
a tactical advantage over the other. Indeed, Family Court
expressly found that each parent embellished his or her side of
the story, noting the mother's tendency toward "drama" and
1
Although Family Court treated this as a "hybrid" initial
custody determination and modification proceeding, we will apply
the change in circumstances analysis applicable to an application
to modify a prior order of custody.
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expressing considerable doubt that the father's "calm, cool and
collected" bearing during his testimony at the hearing was at all
reflective of his demeanor when interacting with the mother.
Family Court's findings in this regard are amply supported by the
record, and our independent review thereof raises serious
concerns regarding the father's willingness to foster a
meaningful relationship between the child and the mother and to
follow the visitation schedule fashioned by the court.
All of that said, the fact remains that the child has
consistently resided in the father's home in Chenango County
since shortly after her birth – a home where she has contact with
her half sibling and her paternal grandmother is available to
assist in her care. The mother, who resides in Onondaga County,
has no family nearby and is dependent upon public
transportation.2 Additionally, although the mother had completed
both inpatient and outpatient rehabilitation programs and was
actively engaged in recovery at the time of the hearing, she had
a history of alcohol abuse and, by her own admission, had
relapsed on four or five occasions between October 2012 and
December 2012 – culminating in a suicide attempt in January
2013.3 While the record contains conflicting proof as to the
impact of the mother's alcoholism upon the child,4 "according due
2
At the time of the hearing, the mother remained on
probation following her felony conviction of driving while
intoxicated, as a result of which she did not possess a valid
driver's license.
3
The mother denied that she was trying to kill herself on
this occasion, stating instead that she consumed sleeping pills
and alcohol in an attempt to get into rehab.
4
The child admittedly had alcohol in her system at her
birth and, although no medical proof was adduced on this point,
the father insists that the child suffers from fetal alcohol
syndrome. The mother, noting that the child "tested out" of
early childhood intervention services, contends that the father
is pushing this diagnosis in an effort to portray her in an
unfavorable light and "label" their child. Family Court, while
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deference to Family Court's factual findings and credibility
determinations" (Matter of Renee TT. v Britney UU., 133 AD3d
1101, 1104 [2015] [internal quotation marks and citations
omitted]) and upon consideration of all of the relevant factors
(see Matter of Andrea CC. v Eric DD., 132 AD3d 1028, 1029
[2015]), including the need to provide some measure of stability
for the young child, we cannot say that Family Court's decision
to award primary physical custody to the father lacks a sound and
substantial basis in the record. Recognizing that a child's best
interests "generally lie with a meaningful relationship with both
parents" (Matter of Culver v Culver, 82 AD3d 1296, 1297 [2011]
[internal quotation marks and citation omitted], appeal dismissed
16 NY3d 884 [2011], lv denied 17 NY3d 710 [2011]), Family Court
fashioned a detailed and expansive visitation schedule for the
mother – one that affords the mother ample opportunity to build a
strong relationship with her child and one to which the father
would be well advised to adhere.
As a final matter, although both the mother and the
attorney for the child upon appeal fault Family Court for failing
to conduct a Lincoln hearing in this matter, the record reflects
that no request was made and no corresponding objection was
lodged at the time of the underlying hearing. Accordingly, this
issue is unpreserved for our review (see Matter of Baxter v
Perico, 288 AD2d 717, 717-718 [2001]). More to the point,
"although Lincoln hearings are preferable, they are not
mandatory" (Matter of Battin v Battin, 130 AD3d 1265, 1266
[2015]) and, given the child's young age, we cannot say that
Family Court abused its discretion in electing to forgo such a
hearing in these matters (see Matter of Cormier v Clarke, 107
AD3d 1410, 1411 [2013], lvs denied 21 NY3d 865 [2013]; Matter of
Graves v Stockigt, 79 AD3d 1170, 1171 [2010]). The parties'
remaining contentions, to the extent not specifically addressed,
have been examined and found to be lacking in merit.
not accepting the father's premise in this regard, nonetheless
chastised the mother for failing to consider the possibility that
her alcohol consumption during her pregnancy impacted her child's
development.
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Lahtinen, J.P., McCarthy, Lynch and Clark, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court