Matter of Cisse v. Graham

120 A.D.3d 801, 991 N.Y.S.2d 465

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 27, 2014
• Docket: 2013-04579
• Status: Published

Opinions

In two related proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Queens County (Negron, Ct. Atty. Ref.), dated April 5, 2013, which, among other things, after a hearing, granted the father’s petition to modify a prior order of custody and visitation of the same court (Clark, J.) dated June 30, 2004, so as to award him custody of the parties’ child, and denied her petition, in effect, to modify the visitation provisions of that order.

Ordered that the order dated April 5, 2013, is affirmed, with costs.

To warrant modification of an existing court-sanctioned custody arrangement, there must be a showing of a change in circumstances such that modification is required to protect the best interests of the child (see Family Ct Act § 652 [a]; Matter of Begy v Begy, 115 AD3d 951 [2014]; Matter of Hixenbaugh v Hixenbaugh, 111 AD3d 636, 637 [2013]; Matter of Quintanilla v Morales, 110 AD3d 1081 [2013]). We recognize, as does the dissent, that the authority of the appellate court is as broad as that of the Family Court, and that simple deference to the Family Court’s findings would be an abdication of our authority (see Matter of Fallo v Tallon, 118 AD3d 991 [2014]). However, we may not substitute our judgment for that of the hearing court where its custody determination depended upon its assessment of the credibility of the witnesses, and those determinations, as well as its findings as to a change in circumstances and the best interests of the child, are founded on a sound and substantial basis in the record, as they are here (see Matter of Quintanilla v Morales, 110 AD3d at 1081-1082; Matter of Cornejo v Salas, 110 AD3d 1068 [2013]).

Here, although the order appealed from determines the father’s petition to modify a prior order of custody and visitation dated June 30, 2004 (hereinafter the 2004 custody order), which was entered upon the stipulation of the parties, we are also reviewing the Family Court’s denial of the mother’s petition, in effect, to modify the visitation provisions of that order. In that regard, it is worth noting that the mother alleged, inter alia, that a change in circumstances had occurred since the entry of the 2004 custody order in that the parties’ child had since been enrolled at a school in Manhattan, the father had moved from Queens to Suffolk County, and the mother had changed jobs. Accordingly, she cannot now be heard to complain that there was no change of circumstances. The mother contended that the visitation provisions needed to be modified so as to be “conducive to [the child’s] academic schedule.” The evidence at the hearing established that there had indeed been a change in circumstances, as alleged by the mother. Furthermore, the evidence in the record supports the Family Court’s finding that in the intervening years since the issuance of the 2004 custody order, the child, who was 12 years old at the time the order appealed from was issued, “has matured and made clearer her needs, her desires, and bases for those desires.” Finally, the record supports the Family Court’s determination that the best interests of the child would most likely be accomplished by a change of custody and affording the mother a liberal and well-defined schedule of visitation. After a thorough recitation of the testimony of the various witnesses, save for the in camera examination of the child (see Matter of Lincoln v Lincoln, 24 NY2d 270 [1969]), and an evaluation of the credibility of the witnesses, the Family Court’s well-reasoned decision and order offers the mother the opportunity to accomplish precisely what she sought in her petition and what she and the child desire, which is the opportunity to spend more quality time with each other.

Contrary to the mother’s contention, which the dissent apparently accepts, that the Family Court focused on incidents remote in time and penalized her for being a working mother, the Family Court properly considered the totality of the circumstances in making its findings (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Matter of Hixenbaugh v Hixenbaugh, 111 AD3d at 637). In so doing, the court weighed several factors in varying degrees of importance, as demanded by the facts of this case, “including, inter alia, (1) the original placement of the child, (2) the length of that placement, (3) the child’s desires, (4) the relative fitness of the parents, (5) the quality of the home environment, (6) the parental guidance given to the child, (7) the parent’s financial status, (8) his or her ability to provide for the child’s emotional and intellectual development, and (9) the willingness of the parent to assure meaningful contact between the child and the other parent” (Matter of Mingo v Belgrave, 69 AD3d 859, 859-860 [2010]; see Cuccurullo v Cuccurullo, 21 AD3d 983, 984 [2005]).

Under the terms of the 2004 custody order, the mother was awarded custody, and the father was awarded extensive, well-defined visitation. The child resided with the mother, and the father’s visitation, as relevant to the parties’ petitions, included the first, third, and fifth (where applicable) weekend of each month, commencing on Friday, after school, until Sunday evening, as well as Tuesday and Thursday evenings following school until 8:00 p.m. The order appealed from, at its core, reverses those terms such that the father has custody of the child, subject to the mother’s substantially similar visitation on the first, third, and fifth (where applicable) weekends of the month and two weekday visits from the close of school until 8:30 p.m. and during other secular and religious holidays.

The Family Court properly considered the father’s testimony that there were instances early on, under the 2004 custody order, when the mother substantially interfered with his ability to visit with the child and that she failed to provide him access to academic records and inform him of school-related activities (see Bliss v Ach, 56 NY2d 995, 998 [1982]; Matter of Tori v Tori, 67 AD3d 1021 [2009]; Matter of Lovitch v Lovitch, 64 AD3d 710, 712 [2009]; Falabella v Murray, 265 AD2d 450 [1999]). However, contrary to the mother’s contention that the Family Court placed too much weight on such remote events, the court cited those events principally in the context of its evaluation of which parent was more likely to foster the child’s relationship with the other. In that regard, the fact that the mother, by her petition, sought to reduce the father’s visitation during the week, as well as on weekends, cannot be ignored. The Family Court credited the court-appointed forensic psychologist’s opinion that, although the mother acknowledged the importance of fostering the child’s relationship with the father, she had not demonstrated the ability to transform those words into deeds. The father, on the other hand, was found less likely to interfere with the child’s relationship with the mother and more likely to address her emotional needs. Toward that end, it cannot be overlooked that the child expressed a significant bond with the father’s wife (hereinafter the stepmother), who testified that she grew up in an environment involving stepparents, that she understands the child’s feelings, and that she understands her role as a stepmother is not to supplant that of the mother.

Although the father moved to West Babylon, Suffolk County, where he currently resides with his wife and their three children, that move was not the genesis of the difficulties the child has encountered in developing the relationship with her mother that she desires. At the hearing, the mother acknowledged that her new work schedule and the child’s school schedule leave little time for them to spend quality time together during the school/work week. The mother acknowledged that her work schedule is not as flexible as it was at the time the 2004 custody order was issued. The mother enrolled the child at the United Nations International School (UNIS) in Manhattan, which requires early morning travel from the mother’s home in Queens. As a result of the mother’s work schedule and the child’s enrollment in a school not in close proximity to the mother’s home, on the days when the child is not visiting with the father, the child is either in aftercare or attending swimming lessons until approximately 6:00 p.m., when the mother picks her up and they travel home to Queens. Dinner and school work leave little time for social interaction between the mother and child. Although the mother attempted to minimize the amount of time during the evenings and weekends when she is required to attend to the demands of her job, the Family Court properly declined to credit this testimony in light of other credible evidence to the contrary, including the testimony of the forensic psychologist, who interviewed the child, and the testimony of the witnesses presented by the mother. The dissent’s acceptance of the mother’s account simply is not supported by the record. Indeed, it is contrary to accounts of the mother and the mother’s sister concerning the time the mother spends with the child.

While the mother’s attention to the demands of her job and her placement of a premium on the child’s academics were acknowledged by the Family Court to be quite laudable, the record supports the court’s determination that the mother failed to strike a proper balance between the child’s academics and her need to socialize with her own peers. Indeed, the record establishes that the child has no play dates with her schoolmates and does not socialize with other children who reside in the LeFrak City community where she and the mother reside. The Family Court found this to be inexplicable, and specifically rejected the mother’s contention that this was due to the father’s extensive visitation schedule. More significantly, the record further establishes that the combination of the demands of the mother’s work, her emphasis on academics, and her decision to enroll the child in a school far from the community in which she lives have actually interfered with the child’s ability to spend quality time with the mother. Time at home with the mother is spent either studying or doing chores that cannot be accomplished during the week, and other time with the mother is spent visiting family in New Jersey. Frequently, the time the mother spends with the child on those family visits is limited, as the mother returns to New York to work while the child stays in New Jersey. To be sure, although the child loves her mother dearly, she is astute and was able to articulate to the forensic psychologist that even when she is in her mother’s physical presence, she often felt alone.

Although a child’s preferences are not determinative of how a court should decide questions of custody and visitation, they may be instructive as to what is in the child’s best interests (see Dintruff v McGreevy, 34 NY2d 887, 888 [1974]; Cieri v Cieri, 56 AD3d 409, 410 [2008]). Here, the child desires to reside with her father, and expressed her hope that her mother would move to the West Babylon community as well. In contrast to her living and social environment in LeFrak City, the record demonstrates that her father and his family, even though limited to “visitation,” provide a better home environment and better care for the child, and that the child perceives it as such. The stepmother’s testimony that the child confides in her regarding social and school issues, even to the extent of discussing her relationship with the mother, was corroborated by the forensic psychologist, who testified that the child views her relationship with her half-siblings and her stepmother as a “safe haven.” The close familial relationship the child has developed with her father, stepmother, and half-siblings should be encouraged, since, “[b]y building identity, countering feelings of isolation, and encouraging healthy adjustments to and with others, [it] provide [s] an important additional dimension to long-term stability” (Matter of Ebert v Ebert, 38 NY2d 700, 704 [1976]).

In addition, the child is well-integrated with the West Babylon community. The child gets along well with her half-siblings and their friends. She has her own friends in the community, attends her half-siblings’ school events and sporting events, goes to church with the family, and takes religion and Irish stepdancing classes. This is quite simply the type of family and community socialization that she does not have when she is in the mother’s home.

The record also supports the Family Court’s rejection of the mother’s contention that transfer of custody, with the attendant transfer from the UNIS school, would remove the child from a multicultural environment that the mother properly considers to be very important for a biracial child. The church that the family attends in West Babylon has one priest from Ghana and another from Korea. The record does not support the mother’s contention that the UNIS school is any more diverse than the West Babylon school district, or that it is any better equipped to nurture the child’s biracial identity. Further, the Family Court specifically cited an example wherein the stepmother and half-siblings supported the child’s biracial identity. When the child purchased a figurine depicting a black dancer for her father for Father’s Day, one of the younger half-siblings followed suit by purchasing a black sports figurine for the father.

Although the recommendations of court-appointed evaluators and the attorney for the child are not determinative, they are factors to be considered and are entitled to some weight (see Matter of Shannon J. v Aaron P., 111 AD3d 829, 831 [2013]; Baker v Baker, 66 AD3d 722, 723-724 [2009]; Matter of Kozlowski v Mangialino, 36 AD3d 916, 917 [2007]). Here, the attorney for the child took no position at the hearing but, on appeal, contends that evidence in the record provided a sound and substantial basis for the Family Court’s determination. The forensic psychologist, like the mother and the child, was quite concerned that the child and mother have difficulty finding time to spend quality time together, especially during the week. Again, the child expressed a sense of loneliness when she is with the mother. The forensic psychologist opined that the mother’s lack of attunement to the emotional needs of the child was evidenced by the mother’s purchase of toys for the child to play with while the mother was at home attending to the demands of her job. It was his view that a change in the custodial and visitation arrangement should be made so that the child could spend more continuous quality time with each parent. The order appealed from strives to achieve that purpose. It recognizes that the father’s work schedule as a teacher permits him to be home in the afternoon not long after the child will arrive home from school and that, rather than spending time in aftercare, as she does now, the child will be with the father and his family and socializing with her peers while still having time to attend to her academic pursuits. More significantly, the Family Court order offers the mother more weekend time with the child and the option for weekday visitation, with the hope that the mother’s “lack of attunement” with the child will be ameliorated by the opportunity of more continuous one-to-one attention to the emotional needs of the child.

The order also addresses the forensic psychologist’s concern with the mother’s unwillingness to enroll the child in therapy, notwithstanding repeated encouragement to do so. The father has expressed a willingness to enroll the child in therapy, and the Family Court order makes a specific directive to that effect.

Since the Family Court’s determination that there had been a sufficient change in circumstances requiring a change in custody to protect the best interests of the subject child is supported by a sound and substantial basis in the record, the court’s determination will not be disturbed (see Matter of Feliccia v Spahn, 108 AD3d 702, 703 [2013]; Matter of DeViteri v Saldana, 95 AD3d [2012]; Matter of Tori v Tori, 67 AD3d 1021 [2009]; Matter of Lovitch v Lovitch, 64 AD3d at 712).

The mother’s remaining contentions either are without merit or have been rendered academic in light of the foregoing.

Skelos, J.E, Dillon and Maltese, JJ., concur.