Thursday, June 2, 2016
CHILD CUSTODY - AGAIN A TEENAGER'S PREFERENCE MAY PREVAIL
Step 1: ANONYMOUS 2011-1 v. ANONYMOUS 2011-2, 102 AD 3d 640 - NY: Appellate Div., 2nd Dept. 2013:
Here we are dealing with two children, 13 and 14 years old. The court notes:
""An order ... modifying custody[ ] must be addressed solely to the infant's best interests" (Kresnicka v Kresnicka, 48 AD2d 929, 929 ; see Matter of Sullivan v Moore, 95 AD3d 1223 ; Matter of Leichter-Kessler v Kessler, 71 AD3d 1148 ; Hizme v Hizme, 212 AD2d 580 ). Where parents enter into an agreement concerning custody, "it will not be set aside unless there is a sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interests of the children" (Matter of Gaudette v Gaudette, 262 AD2d 804, 805 ; see Matter of Joseph F. v Patricia F., 32 AD3d 938, 939 ; Smoczkiewicz v Smoczkiewicz, 2 AD3d 705, 706 ; see also Kollmar v Kollmar, 100 AD3d 712 ). When making such determinations, a court "must consider the totality of the circumstances" (Matter of Chery v Richardson, 88 AD3d 788, 788  [internal quotation marks omitted]; see Eschbach v Eschbach, 56 NY2d 167 ; Matter of Solovay v Solovay, 94 AD3d 898, 899 ). A party seeking a change in custody is entitled to a hearing where the movant has made an evidentiary showing of "a sufficient change in circumstances demonstrating a real need for a change of custody in order to insure the [children's] best interests" (Matter of Nava v Kinsler, 85 AD3d 1186, 1186 ; see Sirabella v Sirabella, 95 AD3d 1296 ; Matter of Dorsa v Dorsa, 90 AD3d 1046, 1046 )."
The sufficient change of circumstances were: 1) specific allegations concerning the father's repeated violations of the custody provisions of the agreement; 2) the full-time employment of the children's therapist, the person designated in the agreement as a neutral third-party "arbitrator" of custodial disputes, by the father; and 3) a "[c]ontinued deterioration in the [parties'] relationship".
STEP 2: ANONYMOUS 2011-1 v. ANONYMOUS 2011-2, 136 AD 3d 946 - NY: Appellate Div., 2nd Dept. 2016
The hearing was held and the children are now 15 and 16. The court notes:
"In determining whether a custody agreement that was incorporated into a judgment of divorce should be modified, the paramount issue before the court is whether, under the totality of the circumstances, a modification of custody is in the best interests of the child (see Matter of Honeywell v Honeywell, 39 AD3d 857, 858 ; Cuccurullo v Cuccurullo, 21 AD3d 983, 984 ).
To determine whether modification of a custody arrangement is in the best interests of the child, the court must weigh several factors of varying degrees of importance, 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 (see McAvoy v Hannigan, 107 AD3d 960, 962-963 ; Matter of Mingo v Belgrave, 69 AD3d 859, 859-860 ; Cuccurullo v Cuccurullo, 21 AD3d at 984)."
The best interests of the child were: "Particularly relevant in this case are the clearly stated preferences of the children, especially considering their age and maturity, and the quality of the home environment provided by the mother."