Fox v. Fox

177 A.D.2d 209, 582 N.Y.S.2d 863, 1992 N.Y. App. Div. LEXIS 4679
Appellate Division of the Supreme Court of the State of New York·Decided March 13, 1992·Published·Cited by 212 cases

Opinions

OPINION OF THE COURT

Balio, J.

The parties physically separated in September of 1986. At that time, defendant mother left the marital residence. The two children of the marriage, a daughter five years of age and a son 10 months old, remained with the father in the marital residence. The parties were divorced in August of 1987. The judgment of divorce incorporated without merger the parties’ stipulation providing for joint custody of their two children, with primary physical custody to remain with the father and liberal visitation privileges to the mother. In August 1991, Supreme Court granted the mother’s motion for a change of primary physical custody.

The party seeking a change of custody "bears a heavy burden of proof that the change contemplated is in the child’s best interests” (Collins v Collins, 115 AD2d 979). Among the factors or circumstances to be considered in ascertaining the child’s best interests are: (1) the continuity and stability of the existing custodial arrangement, including the relative fitness of the parents and the length of time the present custodial arrangement has continued; (2) quality of the child’s home environment and that of the parent seeking custody; (3) the ability of each parent to provide for the child’s emotional and intellectual development; (4) the financial status and ability of each parent to provide for the child; (5) the individual needs and expressed desires of the child; and (6) the need of the child to live with siblings (see, Matter of Louise E.S. v W. Stephen S., 64 NY2d 946; Eschbach v Eschbach, 56 NY2d 167, 172-173; Matter of Nehra v Uhlar, 43 NY2d 242, 250-251; Matter of Ebert v Ebert, 38 NY2d 700, 702-704; Matter of Blake v Blake, 106 AD2d 916).

The preexisting custodial arrangement, whether established by agreement or order, is a weighty factor, and the existing arrangement should be changed based only upon [211] " 'countervailing circumstances on consideration of the totality of circumstances’ ” (Friederwitzer v Friederwitzer, 55 NY2d 89, 95). The priority accorded the existing arrangement reflects the view that custody of children should be established on a long-term basis, wherever possible, and that "children should not be shuttled back and forth between divorced parents merely because of changes in marital status, economic circumstances or improvements in moral or psychological adjustment” (Obey v Degling, 37 NY2d 768, 770; see also, Matter of Nehra v Uhlar, 43 NY2d 242, 251, supra; Keating v Keating, 147 AD2d 675, 677, lv dismissed 74 NY2d 791; Martin v Martin, 74 AD2d 419, 426). Thus, a long-term custodial arrangement established by agreement should prevail "unless it is demonstrated that the custodial parent is unfit or perhaps less fit” (Martin v Martin, supra, at 426; see also, Obey v Degling, supra, at 770; Alan G. v Joan G, 104 AD2d 147, 153), and such established custodial arrangement should not be changed solely to accommodate the desires of the child (see, Matter of Ebert v Ebert, 38 NY2d 700, 703, supra).

In the instant case, it is clear that the trial court changed custody of both children because of the "strong desires” of the 10-year-old daughter to live with her mother and because of the close relationship between the siblings. This was improper. A child of 10 or 11 years of age generally is not of sufficient maturity to weigh intelligently the factors essential to making a wise choice as to custody (Matter of Robert T.F. v Rosemary F., 148 AD2d 449, 452; Feltman v Feltman, 99 AD2d 540, 541; Matter of Hahn v Falce, 56 Misc 2d 427, 435). Moreover, the trial court acted without the benefit of an investigative report and without the testimony of teachers, counselors, psychologists or other experts (see, Matter of Mead v Mead, 143 AD2d 454; Matter of Calder v Woolverton, 50 AD2d 587, affd 39 NY2d 1042; Matter of Barry v Glynn, 59 Misce 2d 75 [child’s preference given effect where supported by expert testimony of psychologist and detailed probation reports]). The record, therefore, is devoid of evidence that this 10 year old is possessed of exceptional judgment or maturity to decide her custodial fate or that her strong preference to be with her mother is in her best interests.

Ordinarily, the custody determination of the trial court is entitled to great deference (see, Eschbach v Eschbach, 56 NY2d 167, 173, supra; Martin v Martin, 74 AD2d 419, 425, supra). Such deference is not warranted, however, where the custody determination lacks a sound and substantial basis in [212] the record (see, Keating v Keating, 147 AD2d 675, 677, supra; Matter of Gloria S. v Richard B., 80 AD2d 72, 76). In the instant case, the trial court, by effectively permitting the 10-year-old daughter to dictate the custody arrangement for herself and her brother, failed to weigh properly all of the factors and circumstances bearing on the children’s best interests. We further conclude that those factors other than the weighty, but not conclusive, circumstances of the existing custodial arrangement, do not demonstrate "countervailing circumstances” supporting a change of custody. Accordingly, the order should be reversed.

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Fox v. Fox, 177 A.D.2d 209, 582 N.Y.S.2d 863, 1992 N.Y. App. Div. LEXIS 4679 (N.Y. Ct. App. 1992).

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