Scott v. Scott

215 A.D.2d 893, 626 N.Y.S.2d 600, 1995 N.Y. App. Div. LEXIS 5348

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 18, 1995
• Status: Published

Opinion

Yesawich Jr., J. Appeal from an order of the Family Court of Albany County (Tepedino, J.H.O.), entered December 28, 1993, which dismissed petitioner’s application, in a proceeding pursuant to Family Court Act article 6, for joint custody of the parties’ children.

Petitioner seeks modification of a prior order awarding custody of the parties’ two children to respondent. She argues that joint custody is now appropriate because she has obtained employment, is working toward a nursing degree, has adequate living facilities for the children, and wishes to spend time with them and to see that they receive religious education. After hearing petitioner’s proof, Family Court granted respondent’s motion to dismiss the petition, and this appeal ensued.

We affirm. Although Family Court should have been more explicit with regard to the factual basis for its determination (see, CPLR 4213 [b]; Matter of Jose L.I., 46 NY2d 1024, 1025-1026), remittal is nevertheless unwarranted for the record is inadequate, as a matter of law, to support a modification (see, Matter of Sunshine A. Y., 88 AD2d 662; compare, Giordano v Giordano, 93 AD2d 310, 312, affd 96 AD2d 653). Even when all of the evidence is viewed in the light most favorable to petitioner, it does not demonstrate a change in circumstances of sufficient magnitude that a modification in the established custody arrangement is necessary to insure the children’s welfare (see, Matter of McCauliffe v Peace, 176 AD2d 382, 383; Matter of Julian v Carey, 124 AD2d 318, 319). Nor has petitioner presented evidence indicating that joint custody would be appropriate or workable for these parties (see, Braiman v Braiman, 44 NY2d 584, 589-590).

Mikoll, J. P., Mercure, Crew III and Peters, JJ., concur. Ordered that the order is affirmed, without costs.