State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: June 23, 2016 519739
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In the Matter of LAWRENCE WARD
JR.,
Respondent,
v MEMORANDUM AND ORDER
DESIREE JEAN FEULNER,
Appellant.
(And Other Related Proceedings.)
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Calendar Date: April 26, 2016
Before: Peters, P.J., Lahtinen, Egan Jr., Devine and Mulvey, JJ.
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Justin C. Brusgul, Voorheesville, for appellant.
Elena Jaffe Tastensen, Saratoga Springs, for respondent.
Michael S. O'Dell, Glens Falls, attorney for the child.
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Lahtinen, J.
Appeal from an order of the Family Court of Saratoga County
(Hall, J.), entered July 17, 2014, which, among other things,
granted petitioner's application, in a proceeding pursuant to
Family Ct Act article 6, to modify a prior order of custody and
visitation.
Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the parents of a son born in 2005.
They have joint legal custody and the mother has primary physical
custody of the child. Family Court noted that the parties were
well known to it since they have filed 23 petitions during the
-2- 519739
young child's life. In April 2013, Family Court issued an eight
page, single-space order with 29 numbered paragraphs (plus
subparagraphs) attempting to specifically address all aspects of
custody and parenting time. Within four months, the father filed
a petition and, by the time of the March 2014 hearing (less than
a year from entry of the prior order), the parties had filed
eight petitions.
Efforts to resolve the disputed issues prior to the hearing
were – not surprisingly – unsuccessful. Family Court stated that
it would consider some changes to the order after each party had
an opportunity to set forth his/her position and proposed
changes. Neither party objected to this procedure. After
hearing the positions of each party, as well as the position of
the attorney for the child, and noting the results of a
psychological evaluation of the child that had been conducted,
Family Court made minor clarifications and changes that, among
other things, required each party to complete a child custody
stress prevention course and modestly expanded the father's
parenting time. The mother appeals.
We affirm. The mother contends that there was not a change
in circumstances to warrant modification of the prior order and
that such modification was not in the best interests of the
child. Initially, we note that, contrary to her current
position, the mother claimed in one of her several petitions
before Family Court that circumstances had, in fact, changed (see
Matter of Wiedenkeller v Hall, 37 AD3d 1033, 1034 [2007], lv
denied 8 NY3d 816 [2007]). In any event, it is apparent from the
parties' history, which was fully known to Family Court, as well
as from the child's psychological evaluation, that the parties'
escalating and ongoing disagreements were having a negative
impact on the child, constituting a change in circumstances to
warrant an inquiry into the best interests of the child (see e.g.
Matter of D'Angelo v Lopez, 94 AD3d 1261, 1262 [2012]). The
court's minor modifications were urged in part by the attorney
for the child and were directed toward, among other things,
tightening the provisions of the prior order with the aspiration
of reducing parental conflict, which would clearly be in the best
interests of this child, who was experiencing undue and
unnecessary stress because of the parties' actions (see e.g.
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Matter of Clary v McIntosh, 117 AD3d 1285, 1286 [2014]; Barbara
ZZ. v Daniel A., 64 AD3d 929, 932-933 [2009]). Although the
hearing was conducted in an informal manner, no party requested
otherwise or objected at the hearing, and the combination of
atypical factors present herein permit this matter to fall within
the narrow exception to the general requirement of a plenary
hearing in child custody proceedings (see S.L. v J.R., ___ NY3d
___, ___, 2016 NY Slip Op 04442, *3 [2016]).
Peters, P.J., Egan Jr., Devine and Mulvey, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court