                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 5, 2016                       520840
________________________________

In the Matter of EDWARD II.,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

RENEE II.,
                    Respondent.
________________________________


Calendar Date:   March 22, 2016

Before:   Lahtinen, J.P., McCarthy, Garry, Rose and Mulvey, JJ.

                             __________


      Friedman & Molinsek, PC, Delmar (Andrew H. Wood of
counsel), for appellant.

      Robert Linville, Public Defender, Hudson (Jessica Howser of
counsel), for respondent.

      Margaret E. Donnelly, East Greenbush, attorney for the
children.

                             __________


Mulvey, J.

      Appeal from an order of the Family Court of Columbia County
(Koweek, J.), entered June 11, 2014, which dismissed petitioner's
application, in a proceeding pursuant to Family Ct Act article 6,
to modify a prior order of custody.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the parents of two daughters (born
in 1999 and 2002 [hereinafter the older child and younger child,
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respectively]).1 Pursuant to a negotiated settlement agreement,
the parties shared joint legal and physical custody of these
children. The agreement alternated physical custody of the
children between the parties, with each parent having custody for
approximately half of the weekdays and alternate weekends. In
2012, the mother filed a petition to modify custody. Family
Court, in a November 2012 consent order, modified the custody
arrangement by awarding the parties joint legal custody, with
physical custody to the mother. This order also granted the
father alternate weekend visitation with the older child and
dinner visitation with this child one night each week until 8:00
p.m. on a night that the younger child had an overnight visit
with the father. For the younger child, the court scheduled
visitation every other weekend for 60 days, after which time the
younger child's visitation would revert back to the schedule in
the parties' settlement agreement. The weekend visitation was to
coincide with the older child's weekend visitation.

      In late 2013, the older child began having some medical
issues, which persisted through late January 2014. Sometime in
early January 2014, the mother discovered that the older child
was engaged in the serious misuse of a cell phone. After some
considerable conflict between the mother and the older child, the
mother took the child's cell phone to law enforcement – who
confirmed the gravity of the misuse. The mother called the
father regarding the situation, and a family meeting was
scheduled to discuss the incident, which was later canceled by
the father. The mother restricted the older child's cell phone
access and enrolled her in counseling. On January 21, 2014, the
father commenced the instant proceeding to modify custody,
seeking primary physical custody of the children on the basis
that the mother had been verbally and physically abusive to the
older child regarding the cell phone incident, that the older
child had allegedly expressed a preference to be in his care and
that the November 2012 custody order did not allow him enough


     1
        The parties also have another child (born in 1991) who is
not a party to this proceeding as that child has reached the age
of majority.
                              -3-                520840

visitation with the children together.

      Following a fact-finding hearing and a Lincoln hearing,
Family Court dismissed the petition finding that the father
"failed to meet his burden to justify a modification of the
existing custodial [o]rder." In doing so the court noted the
"clear undercurrent of dislike and mistrust between [the parties]
and an extensive history of litigation between them." In regard
to the cell phone incident, it determined that the mother "was
justified in being upset with [the older child] and getting into
a confrontation with her." The court also noted that, since
then, "the relationship between [the mother and the older child]
appears to have returned to a normal caring relationship." In
addition, since the cell phone incident, the father had spent
more than the minimal time with the older child than afforded him
in the November 2012 order. The father appeals.

      We affirm. First, we note that the November 2012 order
included a provision that "[e]ither party may petition [Family
C]ourt to modify this [o]rder without the necessity of showing
changed circumstances and are permitted to utilize any evidence
that existed as of the date of settlement." Consequently, the
issue presented to Family Court was not whether a change in
circumstances had been demonstrated, but whether the evidence
demonstrated that the change proposed by the father would serve
the best interests of the children. "In applying the best
interest[s] standard, Family Court must consider such relevant
factors as maintaining stability in the child[ren's lives], the
wishes of the child[ren], the quality of the home environment,
each parent's past performance, relative fitness and ability to
guide and provide for the child[ren's] intellectual and emotional
development, and the effect the award of custody to one parent
would have on the child[ren's] relationship with the other. The
evaluation of these sensitive factors is best made by Family
Court since it is in the best position to evaluate the parties'
testimony, character and sincerity. Additionally, because Family
Court has an opportunity to assess each witness's credibility,
its factual findings are accorded great deference and will not be
disturbed unless they lack a sound and substantial basis in the
record" (Matter of Fletcher v Young, 281 AD2d 765, 767 [2001]
[citations omitted]).
                              -4-                520840

      The father argues that because the November 2012 order only
permits him to have incidental simultaneous visitation with the
children, it is "contrary to precedent . . . and public policy."
He further avers that the November 2012 order unacceptably
results in separating the children, a circumstance that has been
discouraged by both this Court and the Court of Appeals (see e.g.
Eschbach v Eschbach, 56 NY2d 167, 173 [1982]; Matter of Ebert v
Ebert, 38 NY2d 700, 704 [1976]; Matter of Lukaszewicz v
Lukaszewicz, 256 AD2d 1031, 1033 [1998]). The facts in this
record, however, distinguish those cases from the case at bar,
since they either concern custody orders where the siblings were
separated from each other by state lines (see Matter of Ebert v
Ebert, 38 NY2d at 702; Matter of Lukaszewicz v Lukaszewicz, 256
AD2d at 1032) or because physical custody of the siblings did not
lie in one parent (see Eschbach v Eschbach, 56 NY2d at 170-171).
In contrast, pursuant to the parties' settlement agreement and
Family Court's November 2012 order, physical custody of the
children rests in the mother – the older child visits with the
father every other weekend and he is permitted indefinite
visitation with her at any other time. In regard to the younger
child, each parent has physical custody for approximately half of
the weekdays and alternate weekends. While this may result in
the separation of the sisters for a few nights each week, this
separation is not the type of separation of siblings that courts
have discouraged (see Robert B. v Linda B., 119 AD3d 1006, 1009
[2014], lv denied 24 NY3d 906 [2014]; compare Matter of Valenti v
Valenti, 57 AD3d 1131, 1135 [2008], lv denied 12 NY3d 703 [2009];
Matter of Donahue v Buisch, 265 AD2d 601, 603-604 [1999]), and
those cases should not be coextended to the custody and
visitation arrangement between the parties here. The father's
public policy argument on this point is without merit (see Robert
B. v Linda B., 119 AD3d at 1009).

      We further find the father's contentions regarding the
adequacy of the representation by the attorney for the children
to be without merit. Finally, testimony at the fact-finding
hearing and Lincoln hearing demonstrate that the father failed to
appreciate, as serious, the older child's medical and mental
health needs, and he is less aware of the children's academic
progress and needs than the mother. Under all of these
circumstances, we find that the change proposed by the father
                              -5-                  520840

does not serve the children's best interests and Family Court
properly dismissed his petition.

     Lahtinen, J.P., McCarthy, Garry and Rose, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
