Dobies v. Brefka

83 A.D.3d 1148, 921 N.Y.S.2d 349
CourtAppellate Division of the Supreme Court of the State of New York
DecidedApril 7, 2011
StatusPublished
Cited by38 cases

This text of 83 A.D.3d 1148 (Dobies v. Brefka) 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
Dobies v. Brefka, 83 A.D.3d 1148, 921 N.Y.S.2d 349 (N.Y. Ct. App. 2011).

Opinion

Egan Jr., J.

Appeal from an order of the Family Court of Schenectady County (Powers, J.), entered April 20, 2010, which, among other things, partially granted petitioner’s applications, in two proceedings pursuant to Family Ct Act article 6, to, among other things, modify a prior order of custody.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the unmarried parents of two children, Jaclyn (born in 1993) and Nikolas (born in 1995). Underlying this case is a history of acrimonious relations between the parties, resulting in more than a decade of litigation between them and members of the mother’s family (see Dobies v Brefka, 45 AD3d 999 [2007]; Dobies v Brefka, 273 AD2d 776 [2000], lv dismissed 95 NY2d 931 [2000]; Matter of Brefka v Dobies, 271 AD2d 876 [2000], lv denied 95 NY2d 759 [2000]; Dobies v Brefka, 263 AD2d 721 [1999]). In 1999, the parties entered into a stipulation, which was incorporated into an order, whereby it was agreed, among other things, that the mother have sole custody of the children and that the father have certain parenting time. Thereafter, in 2004, the father filed both a violation petition and petition seeking sole custody of the children, alleging that the mother had engaged in an intentional campaign of parental alienation against him. In November 2004, Family Court granted the father’s violation petition, ordered that the mother continue to have sole custody of the children, but increased the father’s parenting time. In its determination, Family Court expressed its “grave concerns” with the mother’s behavior, noting that it would reconsider its decision if she continued to interfere with the father’s relationship with the children.1

In September 2008, the father commenced the first of these [1149]*1149proceedings, seeking, among other things, an order granting him sole custody of the children and terminating his child support obligations. In October 2008, the father commenced the second of these proceedings alleging that the mother had intentionally violated the 2004 and 2008 custody orders. After fact-finding and Lincoln hearings, Family Court granted the father sole physical and legal custody of Nikolas, terminated the father’s child support obligations for Jaclyn, suspended the father’s child support obligations for Nikolas and sentenced the mother to 60 days in jail for willfully violating the prior orders.2 Family Court denied that part of the father’s application seeking custody of Jaclyn, finding that her relationship with the father was irreparable. The mother and the attorney for the children now both appeal.3

Initially, we are not persuaded that Family Court erred in finding that the father established the requisite change in circumstances. To effectuate a modification of a prior custody order, the father must establish “a change in circumstances reflecting a real need for change in order to insure the continued best interest of the child” (Matter of Robert SS. v Ashley TT., 75 AD3d 780, 781 [2010] [internal quotation marks and citations omitted]; see Matter of Paul T. v Ann-Marie T., 75 AD3d 788, 789 [2010], lv denied 15 NY3d 713 [2010]; Matter of Henderson v MacCarrick, 74 AD3d 1437, 1439 [2010]). The 1999 custody order granted the father parenting time every other weekend, for three weeks during the summer, from Wednesday through Sunday of Thanksgiving week in odd numbered years, on Father’s Day, on the father’s birthday (November 6), and from December 27 through December 29. The 2004 custody order expanded the father’s alternate weekend parenting time through Monday when there is no school because of a holiday and awarded him additional parenting time during winter and spring recesses, for one week after Christmas and for five weeks during the summer. The father claimed that a sufficient change in circumstance had occurred since entry of these prior orders based on, among other things, the mother’s deliberate attempts to influence and disrupt the father’s parenting time with the children.

At the hearing of this matter, the father testified that he has not had any visitation with Jaclyn since March 2007 and has [1150]*1150had no weekend parenting time with Nikolas between August 2008 and March 2009.4 The father recounted multiple examples of alienating behavior engaged in by the mother, including in the spring of 2007 when the mother refused to let Nikolas participate in visitation with the father because of inclement weather—despite the fact that both parties had already driven to the custody exchange point. The father also testified that, in 2007, the mother told Jaclyn that she did not have to participate in the spring break visit with the father. The father further testified that on two occasions—in April 2007 and at the commencement of Father’s Day weekend in June 2007—when Jaclyn refused to participate in visitation with the father, the mother indicated that there was nothing she could do about it and that Jaclyn had a mind of her own. The father also testified that during an attempted exchange occurring in the summer of 2007 at a restaurant parking lot—an exchange that never occurred—the mother refused to transfer Nikolas’ suitcase to the father’s car and then laughed at the father and took a photograph of him with her cell phone while she walked inside the restaurant with the children.

The mother did not dispute that the relationship between the father and the children has deteriorated to the point that the children have refused visitation with him, but she attributed this to the actions of the father—claiming he was dishonest, that he called the children names and that he used physical force to discipline the children. While she testified that it was “very important” for Nikolas to have a relationship with his father and asserted that she has encouraged such visitation, the mother could not identify one instance when she disciplined Nikolas for refusing to visit the father or for misbehaving while visiting. The mother also testified that she felt that the father was a “pathological liar” and, in essence, that she accepted Nikolas’ version of events whenever the father accused Nikolas of misbehaving. Family Court found the mother’s explanations for her conduct insufficient and her “credibility to be seriously impaired and her testimony contradictory throughout the trial, particularly when she denied actively discouraging the children from having a relationship with their father.” According deference to Family Court’s credibility determinations, we find that there is sufficient evidence in the record supporting the court’s conclusion that the mother interfered in the father’s relationship with the children, such that the father established the requisite change in circumstances (see Matter of Arieda v Arieda-[1151]*1151Walek, 74 AD3d 1432, 1434 [2010]; Matter of Sloand v Sloand, 30 AD3d 784, 786 [2006]; Matter of Knapp v Knapp, 296 AD2d 604, 605 [2002]).

Having so determined, Family Court was then required to conduct a best interest analysis, considering factors such as “maintaining stability in the child’s life, the wishes of the child, the quality of the home environment, each parent’s past performance, relative fitness and ability to guide and provide for the child’s intellectual and emotional development, and the effect the award of custody to one parent would have on the child’s relationship with the other” (Matter of Troy SS. v Judy UU.,

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

Related

Matter of David JJ. v. Tara KK.
2025 NY Slip Op 04063 (Appellate Division of the Supreme Court of New York, 2025)
Matter of Brown v. Simon
2021 NY Slip Op 03831 (Appellate Division of the Supreme Court of New York, 2021)
Matter of Michael U. v. Barbara U.
2020 NY Slip Op 07957 (Appellate Division of the Supreme Court of New York, 2020)
Matter of Brinskelle v. Widman
137 A.D.3d 1022 (Appellate Division of the Supreme Court of New York, 2016)
Matter of Caswell v. Caswell
134 A.D.3d 1175 (Appellate Division of the Supreme Court of New York, 2015)
Matter of Shokralla v. Banks
130 A.D.3d 1263 (Appellate Division of the Supreme Court of New York, 2015)
Matter of McCarthy v. McCarthy
129 A.D.3d 970 (Appellate Division of the Supreme Court of New York, 2015)
Matter of Dykstra v. Bain
127 A.D.3d 1516 (Appellate Division of the Supreme Court of New York, 2015)
Matter of Karnofsky (New York State Department of Corrections and Community Supervision)
125 A.D.3d 1198 (Appellate Division of the Supreme Court of New York, 2015)
Heather B. v. Daniel B.
125 A.D.3d 1157 (Appellate Division of the Supreme Court of New York, 2015)
Matter of Harlost v. Carden
124 A.D.3d 968 (Appellate Division of the Supreme Court of New York, 2015)
MatterofCidvDiSanto
Appellate Division of the Supreme Court of New York, 2014
Cid v. DiSanto
122 A.D.3d 1094 (Appellate Division of the Supreme Court of New York, 2014)
Paul A. v. Shaundell LL.
117 A.D.3d 1346 (Appellate Division of the Supreme Court of New York, 2014)
Rodman v. Friedman
112 A.D.3d 537 (Appellate Division of the Supreme Court of New York, 2013)
McCloskey v. McCloskey
111 A.D.3d 1120 (Appellate Division of the Supreme Court of New York, 2013)
Curley v. Klausen
110 A.D.3d 1156 (Appellate Division of the Supreme Court of New York, 2013)
Festa v. Dempsey
110 A.D.3d 1162 (Appellate Division of the Supreme Court of New York, 2013)
KENNEDY, DANIEL F. v. KENNEDY, ASHLEY LAUREN
Appellate Division of the Supreme Court of New York, 2013
Kennedy v. Kennedy
107 A.D.3d 1625 (Appellate Division of the Supreme Court of New York, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
83 A.D.3d 1148, 921 N.Y.S.2d 349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dobies-v-brefka-nyappdiv-2011.