Austin v. Smith

Appeal from an order of the Family Court of Otsego County (Lambert, J.), entered January 13, 2016, 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.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the divorced parents of a son (born in 2011). By order entered on consent in November 2012, the parties were granted joint legal custody of the child with equal parenting time. According to all involved, the mother and the father thereafter worked in a cooperative fashion and successfully shared physical custody of their son each week. In July 2015, the mother, who resided in Otsego County, filed a modification petition seeking primary physical custody, and the father, who resided in Madison County, cross-petitioned for similar relief— each citing the fact that the child was nearing school age and would need to establish a primary residence for the purpose of enrolling in school. Following a hearing, Family Court awarded primary physical custody of the child to the mother and certain parenting time to the father. This appeal by the father ensued.

“A parent seeking to modify an existing custody order first must demonstrate that a change in circumstances has occurred

The record reflects that, to their great credit and despite living nearly one hour apart from one another, the mother and the father have communicated successfully on a near daily basis and have worked together for the benefit of their child— alternating physical custody during the course of each week depending upon their respective schedules and sharing the transportation associated therewith. At the time of the hearing, the mother resided with her boyfriend, their child and the maternal grandmother in a four-bedroom farmhouse; the mother was enrolled in nursing school and, when she was not in school, helped with chores on the boyfriend’s dairy farm. The mother testified that the child was covered under the boyfriend’s health insurance plan and that the maternal grandmother assisted with child care. The father, on the other hand, was working for a company that builds barn shells out of reclaimed wood; at the time of the hearing, the father also was helping out on his mother’s dairy farm approximately 10 hours each week and, during the summer months, was devoting 15 to

In awarding custody to the mother, Family Court seems to have penalized the father for failing to rebuke the paternal grandmother for allegedly “discuss [ing] adult matters with the child.” We agree that the mother’s suspicions as to what the paternal grandmother may have said to the child regarding the school he would be attending and/or his relationship with the mother’s boyfriend are largely unsubstantiated and, therefore, do not provide a sound basis upon which to deprive the father of physical custody. Our fact-finding powers, however, are as broad as those possessed by Family Court (see Bowman v Engelhart, 112 AD3d 1187 , 1189 [2013]; Matter of Valentine v Valentine, 3 AD3d 646 , 647 [2004]), and we are persuaded that the mother’s schedule is somewhat more flexible/less demanding than the father’s schedule. Additionally, we note that the mother has extended family in the area and that awarding primary physical custody to her would enable the child to reside with his half sibling. For these reasons, we find that Family Court’s award of primary physical custody to the mother is supported by a sound and substantial basis in the record.

That said, we conclude that Family Court’s award of parenting time to the father—consisting of alternating weekends and one half of school vacations and holidays—should be expanded. As noted previously, the attorney for the child believed that the child benefitted greatly from substantial contact with both parents and, when asked what sort of visitation schedule she envisioned if she were to be awarded primary physical custody of the child, the mother replied, “I would like him to spend every weekend with his father and we’d still split the holidays like we have been,” in addition to spending time with the father during school breaks and splitting the summer “50/50.” Given that no misconduct on the part of the father was alleged (much

McCarthy, J.P., Lynch, Clark and Aarons, JJ., concur.

Ordered that the order is modified, on the facts, without costs, by awarding respondent additional parenting time as set forth in this Court’s decision, and, as so modified, affirmed.