Casarotti v. Casarotti

107 A.D.3d 1336, 967 N.Y.S.2d 783
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJune 27, 2013
StatusPublished
Cited by39 cases

This text of 107 A.D.3d 1336 (Casarotti v. Casarotti) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Casarotti v. Casarotti, 107 A.D.3d 1336, 967 N.Y.S.2d 783 (N.Y. Ct. App. 2013).

Opinion

Spain, J.

Appeal from an order of the Family Court of Madison County (DiStefano, J.), entered August 23, 2012, which granted petitioner’s application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the divorced parents of two daughters (born in 1992 and 1998) and a son (born in 1994). The youngest daughter (hereinafter the child) is the subject of this proceeding. The family lived together in northern California until the parties’ separation in 2000, at which time the mother moved with the children to New York. The parties later consented to joint custody of the children and a stipulation to that effect was [1337]*1337incorporated but not merged into their 2007 judgment of divorce. In accordance with the stipulation, the mother maintained primary physical custody of the children in New York and the father, who remained in California, was granted liberal parenting time during weekends, winter holidays and summer vacations. In July 2012, the father commenced this custody modification proceeding, seeking primary physical custody of the child, alleging that the two older children had moved out of the mother’s house and that the mother was emotionally abusive to the child, who had expressed her wish to live with him. Following an August 2012 hearing at which the parties, the 14-year-old child and her 20-year-old sister testified, Family Court granted the father’s petition and awarded him primary physical custody, while otherwise maintaining joint custody, and granted the mother liberal parenting time.1 The mother now appeals.

To modify an existing custody order, “the party seeking the modification [must] demonstrate[ ] a sufficient change in circumstances since entry of the prior order to warrant modification thereof in the child’s best interest” (Matter of Hamilton v Anderson, 99 AD3d 1077, 1078 [2012] [internal quotation marks and citation omitted]; see Matter of Smith v Barney, 101 AD3d 1499, 1500 [2012]; Matter of Michael GG. v Melissa HH., 97 AD3d 993, 994 [2012]). Notably, where the prior order was entered on the parties’ consent, it is entitled to less weight (see Matter of Youngs v Olsen, 106 AD3d 1161, 1163 [2013]; Matter of Rosi v Moon, 84 AD3d 1445, 1446 [2011]). Moreover, “while not dispositive, the express wishes of older and more mature children can support the finding of a change in circumstances” (Matter of Burch v Willard, 57 AD3d 1272, 1273 [2008]; accord Matter of Dorsa v Dorsa, 90 AD3d 1046, 1047 [2011]; see Matter of Oddy v Oddy, 296 AD2d 616, 617 [2002]). Although Family Court did not expressly address whether the father demonstrated a sufficient change in circumstances to warrant modification, “this Court has the authority to independently review the record” (Matter of Prefario v Gladhill, 90 AD3d 1351, 1352 [2011]; see Matter of Bedard v Baker, 40 AD3d 1164, 1165 [2007]).

Testimony at the hearing established that the relationship between the mother and the child had, to an extent, deteriorated and had become strained as the child matured, resulting in escalating verbal confrontations approximately once a week that sometimes involved the mother directing profanity and [1338]*1338vulgarities at the child. The child testified that, on at least one recent occasion, the mother told her to move out of the house and, when the child left the house, the mother locked the door behind her. The child spent the evening on the front porch, called her sister and father because she did not know where to go and attempted unsuccessfully to find somewhere to pass the night. Later that night, the mother allowed her back into the house. The sister and mother testified that the mother similarly kicked the two older children out of the house several times, which resulted in the sister moving out and the brother spending significant time periods at the home of a family friend.

The record also indicates that the mother made no effort to foster a meaningful relationship between the father and the child and that she even, at times, impeded their communication. Particularly troubling is the testimony from the father, the sister and the child that the mother threatened the children with negative consequences should they testify in support of the father’s requested custody modification. The sister testified that her mother threatened to cut off her financial aid for college and that she was worried that she would be denied access to her half brother, the mother’s child from a subsequent relationship who also lived in the mother’s home. The child testified that her mother told her that there would be consequences to testifying and “sort of” told her that these consequences would be “bad,” but she was reluctant to elaborate on these threats in further detail.

Although not an issue directly raised on appeal, the Attorney for the Child and the father both requested that Family Court hold a Lincoln hearing (see Matter of Lincoln v Lincoln, 24 NY2d 270 [1969]) rather than require the child to testify in open court. Unfortunately, this request was denied and, after the mother refused to consent to the child testifying outside of the parties’ presence, the child had to testify under oath in front of both parents. While we recognize that Family Court has the discretion to decide whether a Lincoln hearing is appropriate (see Matter of McGovern v McGovern, 58 AD3d 911, 913 n 2 [2009]; Matter of Farnham v Farnham, 252 AD2d 675, 677 [1998]), it was clearly an abuse of discretion for the court to put the child in this awkward position, notwithstanding that her wishes were already known to her parents, particularly considering the testimony that the mother attempted to influence the testimony of her children. We again emphasize that “ ‘a child . . . should not be placed in the position of having [his or her] relationship with either parent further jeopardized by having to publicly relate [his or her] difficulties with them’ ” when explaining the [1339]*1339reasons for his or her preference (Matter of McGovern v McGovern, 58 AD3d at 913 n 2, quoting Matter of Lincoln v Lincoln, 24 NY2d at 272). Given the circumstances of this case and the fact that — at her age — her preference would be entitled to great weight, the record indicates that a Lincoln hearing would have limited the risk of harm and “would have been far more informative and worthwhile than ... an examination of the child under oath in open court” (Matter of McGovern v McGovern, 58 AD3d at 914 n 2 [internal quotation marks and citation omitted]; see Matter of Minner v Minner, 56 AD3d 1198, 1199 [2008]; see also Matter of Justin CC. [Tina CC.], 77 AD3d 207, 209-210 [2010]). In any event, although the child hesitated to fully articulate the mother’s threats, the record demonstrates the mother’s willingness to put her own interests before the child’s interest in having healthy relationships with both of her parents.

Significantly, Family Court found that the child was “capable,” “mature” and adamant in her desire to spend more time with her father.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Matter of Dusten T. v. Trisha U.
2025 NY Slip Op 01144 (Appellate Division of the Supreme Court of New York, 2025)
Matter of Erick RR. v. Victoria SS.
206 A.D.3d 1523 (Appellate Division of the Supreme Court of New York, 2022)
Matter of Andrea H. v. Justin I.
164 N.Y.S.3d 255 (Appellate Division of the Supreme Court of New York, 2022)
Matter of Latoya B. v. Marvin D.
2021 NY Slip Op 01104 (Appellate Division of the Supreme Court of New York, 2021)
Matter of Anthony YY. v. Emily ZZ.
2020 NY Slip Op 07961 (Appellate Division of the Supreme Court of New York, 2020)
Matter of Edwin Z. v. Courtney AA.
2020 NY Slip Op 05987 (Appellate Division of the Supreme Court of New York, 2020)
Michael YY. v. Michell ZZ.
149 A.D.3d 1284 (Appellate Division of the Supreme Court of New York, 2017)
CURRY, TORRENCE P. v. REESE, LATOYA D.
145 A.D.3d 1475 (Appellate Division of the Supreme Court of New York, 2016)
Matter of Angela N. v. Guy O.
144 A.D.3d 1343 (Appellate Division of the Supreme Court of New York, 2016)
Matter of Rutland v. O'Brien
143 A.D.3d 1060 (Appellate Division of the Supreme Court of New York, 2016)
Matter of Joshua C. v. Yolanda C.
140 A.D.3d 1213 (Appellate Division of the Supreme Court of New York, 2016)
Matter of Coleman v. Millington
140 A.D.3d 1245 (Appellate Division of the Supreme Court of New York, 2016)
Matter of Stephen G. v. Lara H.
139 A.D.3d 1131 (Appellate Division of the Supreme Court of New York, 2016)
Matter of Kylene FF. v. Thomas EE.
137 A.D.3d 1488 (Appellate Division of the Supreme Court of New York, 2016)
Gerber v. Gerber
133 A.D.3d 1133 (Appellate Division of the Supreme Court of New York, 2015)
Matter of Schlegel v. Kropf
132 A.D.3d 1181 (Appellate Division of the Supreme Court of New York, 2015)
Matter of Hartjen v. Hartjen
132 A.D.3d 1172 (Appellate Division of the Supreme Court of New York, 2015)
Matter of Battin v. Battin
130 A.D.3d 1265 (Appellate Division of the Supreme Court of New York, 2015)
Matter of Cornick v. Floreno
130 A.D.3d 1170 (Appellate Division of the Supreme Court of New York, 2015)
Matter of Jones v. Moore
129 A.D.3d 1400 (Appellate Division of the Supreme Court of New York, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
107 A.D.3d 1336, 967 N.Y.S.2d 783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/casarotti-v-casarotti-nyappdiv-2013.