Thursday, November 17, 2016
MODIFICATION OF CUSTODY WHEN SIBLINGS ARE INVOLVED
In Cook v. Cook, 2016 NY Slip Op 5743 - NY: Appellate Div., 2nd Dept. 2016, the children were around 12 and 9 at the time of the hearing:
"A party seeking the modification of an existing court-ordered child custody arrangement has the burden of demonstrating that circumstances have changed since the initial custody determination" such that modification is necessary to ensure the children's best interests (Musachio v Musachio, 137 AD3d 881, 882-883; see Matter of Klotz v O'Connor, 124 AD3d 662, 662-663). "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 [children]" (Matter of Honeywell v Honeywell, 39 AD3d 857, 858; see Anonymous 2011-1 v Anonymous 2011-2, 102 AD3d 640, 641). To determine whether modification of a custody arrangement is in the best interests of the children, the court must weigh several factors of varying degrees of importance, including, inter alia, (1) the original placement of the children, (2) the length of that placement, (3) the children's desires, (4) the relative fitness of the parents, (5) the quality of the home environment, (6) the parental guidance given to the children, (7) the parents' relative financial status, (8) the parents' relative ability to provide for the children's emotional and intellectual development, and (9) the willingness of each parent to assure meaningful contact between the children and the other parent (see Anonymous 2011-1 v Anonymous 2011-2, 136 AD3d 946, 948; Cuccurullo v Cuccurullo, 21 AD3d 983, 984).
Here, the father demonstrated a sufficient change in circumstances to warrant modification of the custody provisions of the settlement agreement so as to award him residential custody of Jonathan. The record supports the Supreme Court's determination that Jonathan's relationship with the mother has deteriorated since the prior custody arrangement was agreed to (see Matter of Burke v Cogan, 122 AD3d 625, 626; Matter of Filippelli v Chant, 40 AD3d 1221, 1222; Matter of Maute v Maute, 228 AD2d 444), and that the father exhibits a greater sensitivity to his emotional and psychological needs, particularly with respect to the environment in Jonathan's new school (see Matter of Dorsa v Dorsa, 90 AD3d 1046, 1047). We discern no reason to disturb the court's determination that the father's testimony was more credible than the mother's testimony. Additionally, the attorney for the children advocated for residential custody to be awarded to the father, since Jonathan, who was 12 years old when the father's petition was filed, communicated a preference to reside with him. While the express wishes of a child are not controlling (see Matter of Ross v Ross, 86 AD3d 615; Matter of Bond v MacLeod, 83 AD3d 1304), the child's wishes should be considered and are entitled to great weight, where, as here, the child's age and maturity would make his input particularly meaningful (see Matter of Coull v Rottman, 131 AD3d 964; Matter of Rosenblatt v Rosenblatt, 129 AD3d 1091; Koppenhoefer v Koppenhoefer, 159 AD2d 113). Accordingly, the court's determination to modify the custody provisions of the settlement agreement so as to award the father residential custody of Jonathan has a sound and substantial basis in the record.
However, the Supreme Court's determination that the evidence did not demonstrate a sufficient change in circumstances warranting modification of the custody provisions of the settlement agreement so as to award the father residential custody of the parties' child Madison is not supported by a sound and substantial basis in the record. It "has long [been] recognized that it is often in the child's best interests to continue to live with his [or her] siblings" (Eschbach v Eschbach, 56 NY2d 167, 173), and "the courts will not disrupt sibling relationships unless there is an overwhelming need to do so" (Matter of Lao v Gonzales, 130 AD3d 624, 625; see Matter of Shannon J. v Aaron P., 111 AD3d 829, 831). It is undisputed that Jonathan and Madison have a close relationship, and, based upon the recommendations of the children's therapist that they should not be separated, the position of the attorney for the children that they should remain with the same custodial parent, and evidence that the father demonstrated more of an ability and willingness to assure meaningful contact between the children and the mother, and to foster a healthier relationship between the children and the mother, than the mother would have fostered between the children and the father, the court should have awarded residential custody of Madison to the father (see Eschbach v Eschbach, 56 NY2d at 173-174; Matter of Shannon J. v Aaron P., 111 AD3d at 831; Matter of Pappas v Kells, 77 AD3d 952; Matter of Tori v Tori, 67 AD3d 1021)."