At page 1171 Determining custody based on change in circumstances12 citing cases“Here, for the reasons that follow, and according due deference to Family Court’s assessment of witness credibility, we find that a sound and substantial basis in the record exists to support the court’s determination that such a change in circumstances occurred to warrant a change in custody (see M…”
- Matter of William O. v. Wanda A., 151 A.D.3d 1189 (N.Y. App. Div. 3d Dep't 2017).publishedAdditionally, although Lincoln hearings are preferred, they are not mandatory and, given the children’s relatively young ages at the time of the hearing, we discern no abuse of discretion in Family Court’s determination not to conduct a Li…
- Karim R. v. Salamatou S., 143 A.D.3d 471 (N.Y. App. Div. 1st Dep't 2016).publishedIn addition, the mother has a history of neglect cases (see Matter of Graves v Stockigt, 79 AD3d 1170, 1171 [3d Dept 2010]).
- Matter of Bush v. Miller, 136 A.D.3d 1238 (N.Y. App. Div. 3d Dep't 2016).publishedAccording the requisite deference to Family Court’s credibility determinations, we find that the evidence of the intervening child protective reports involving the mother’s excessive consumption of alcohol and inadequate guardianship of th…
- Matter of Colleen GG. v. Richard HH., 135 A.D.3d 1005 (N.Y. App. Div. 3d Dep't 2016).publishedMore to the point, “although Lincoln hearings are preferable, they are not mandatory” (M atter of Battin v Battin, 130 AD3d 1265, 1266 [2015]) and, given the child’s young age, we cannot say that Family Court abused its discretion in elect…
- Voorhees, Jessica W. v. Talerico, Gary I., 128 A.D.3d 1466 (N.Y. App. Div. 4th Dep't 2015).publishedThe father presented evidence establishing that the conditions in the mother’s residence were unsanitary and unsafe for the child and that the child had been exposed to instances of sexual abuse while under the mother’s care and supervisio…
- Ruple v. Harkenreader, 99 A.D.3d 1085 (N.Y. App. Div. 2012).published As there was no showing that it would not be in the child’s best interests for the father to have such information, we modify the order to afford the father access to the child’s medical and school records, at his own expense, and to direc…
- Thillman, Lori M. v. Mayer, Charles R., 85 A.D.3d 1624 (N.Y. App. Div. 4th Dep't 2011).publishedIn any event, based on the child’s young age, we perceive no abuse of discretion in the court’s failure to conduct a Lincoln hearing (see Matter of Graves v Stockigt, 79 AD3d 1170, 1171 [2010]).
- Carey, James R. v. Windover, Sarah L., 85 A.D.3d 1574 (N.Y. App. Div. 4th Dep't 2011).publishedConsequently, “according due deference to [the c]ourt’s assessment of witness credibility” (Matter of Graves v Stockigt, 79 AD3d 1170, 1171 [2010]), we conclude that the court’s determination to award primary physical custody of the childr…
- Olufsen v. Plummer, 105 A.D.3d 1418 (N.Y. App. Div. 4th Dep't 2013).published “In any event, based on the child’s young age, we perceive no abuse of discretion in the court’s failure to conduct a Lincoln hearing” (Thillman, 85 AD3d at 1625 ; see Matter of Graves v Stockigt, 79 AD3d 1170, 1171 [2010]).
- Starkey v. Ferguson, 80 A.D.3d 799 (N.Y. App. Div. 3d Dep't 2011).publishedThe father was entitled to a modification of the existing custody order if he demonstrated a “sufficient change in circumstances reflecting a real need for change in order to insure the continued best interest of the child” (Matter of Rue…
Other citing cases
- Olufsen, Bradley v. Plummer, Tricia, No. CAF 12-00335 (N.Y. App. Div. 4th Dep't Apr. 26, 2013).published
v.
Melissa J. Stockigt
Appeal from an order of the Family Court of Tioga County (Sgueglia, J.), entered March 17, 2009, which granted petitioner’s application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.
Pursuant to a January 2008 amended order, petitioner (hereinafter the father) and respondent (hereinafter the mother) shared joint custody of their son (born in 2004), with the mother having primary physical custody. In July 2008, the father commenced this modification proceeding seeking, among other things, sole custody as well as an order directing that the child’s stepfather have no contact with the child during visitation with the mother. In the interim, the father was awarded temporary custody with the directive that the stepfather have no contact[*1171] with the child during the mother’s visitations. Following a two-day fact-finding hearing, Family Court found a sufficient change in circumstances and granted the father’s petition for sole custody, prompting this appeal.
A petitioner seeking to modify an existing custody order must demonstrate a “sufficient change in circumstances reflecting a real need for change in order to insure the continued best interest of the child” (Matter of Rue v Carpenter, 69 AD3d 1238, 1239 [2010] [internal quotation marks and citation omitted]; see Matter of Arieda v Arieda-Walek, 74 AD3d 1432, 1433 [2010]). Here, for the reasons that follow, and according due deference to Family Court’s assessment of witness credibility, we find that a sound and substantial basis in the record exists to support the court’s determination that such a change in circumstances occurred to warrant a change in custody (see Matter of Colwell v Parks, 44 AD3d 1134, 1135-1136 [2007]).
Specifically, recent indicated Child Protective Services reports against the mother established her lack of supervision and inadequate guardianship of the child. Furthermore, at the time the petition was filed, the mother was being evicted from her home, the conditions of which were unsanitary and unsafe particularly with respect to the area outside the home. In addition, despite the child’s asthmatic condition as well as a restriction in the prior custody order prohibiting smoking around the child, the mother’s home smelled of smoke. Evidence in the record indicates that the child did not receive his daily asthma medicine when in the mother’s custody. Moreover, testimony at the hearing tends to support the allegations that the stepfather was abusive toward the child and the mother. Significantly, despite the court’s directive, the stepfather had contact with the child while visiting with the mother during the pendency of this proceeding. The father, on the other hand, maintains a stable living situation and resides at his parents’ home. The paternal grandmother testified regarding her efforts to keep the home clean to accommodate the child’s asthmatic condition. Furthermore, while in the father’s care, the child consistently receives his asthma medication.
Finally, the mother’s contention that Family Court abused its discretion in not conducting a Lincoln hearing is unpersuasive, particularly given the young age of the child (see Matter of Lopez v Robinson, 25 AD3d 1034, 1037 [2006]; Matter of Farnham v Farnham, 252 AD2d 675, 677 [1998]). We have reviewed the mother’s remaining contentions and find them to be unpersuasive.
Although not raised by the parties, we deem it appropriate[*1172] under the circumstances herein to modify Family Court’s order to the extent of directing that each parent continue to have complete access to all of the child’s medical records and/or school records.
Mercure, Lahtinen, Stein and Garry, JJ., concur. Ordered that the order is modified, on the facts, without costs, by directing that each parent continue to have complete access to all of the child’s medical records and/or school records, and, as so modified, affirmed.