                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 12, 2017                   521859
____________________________________

In the Matter of ANDREA C.,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

DAVID B.,
                    Appellant.

(And Two Other Related Proceedings.)
____________________________________


Calendar Date:   November 16, 2016

Before:   Egan Jr., J.P., Lynch, Rose, Clark and Aarons, JJ.

                             __________


     Alena E. Van Tull, Binghamton, for appellant.

     Samuel D. Castellino, Big Flats, for respondent.

     Martha Lyons, Binghamton, attorney for the child.

                             __________


Egan Jr., J.P.

      Appeal from an order of the Family Court of Broome County
(Connerton, J.), entered September 30, 2015, which, among other
things, granted petitioner's application, in a proceeding
pursuant to Family Ct Act article 6, to modify a prior order of
custody.

      Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the divorced parents of a daughter
(born in 2005). In June 2007, the parties stipulated to an order
granting them joint legal custody of the child with primary
physical placement to the mother and specified visitation to the
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father.1 Although the parties thereafter expanded the father's
visitation schedule on their own accord and, together with the
father's new wife, often shared family dinners together, a
growing disagreement began brewing between the mother and the
father with respect to, among other things, day care arrangements
for the child, her participation in various summer or holiday
camps and the individualized services that were provided to her.2
The parties' differences came to a head in 2013 when the mother
had the child evaluated for attention deficit hyperactivity
disorder (hereinafter ADHD) and a recommendation was made that
the child receive a combination of medication and counseling; the
mother "was very interested in doing a trial of medication" while
the father "was totally against doing any medication."

      Insofar as is relevant here, the mother commenced the first
of these proceedings in September 2014 seeking sole custody of
the child – citing, among other things, the father's lack of
cooperation and interference with the child's service providers.
The father cross-petitioned for sole custody – asserting, among
other things, that the mother lacked the ability to effectively
manage the child's behavioral issues and placed the child on ADHD
medication without his consent – and also filed a violation
petition alleging that the mother failed to adhere to the
visitation schedule set forth in the June 2007 order. A lengthy
fact-finding hearing ensued, during the course of which testimony
was received from, among others, numerous service providers,
counselors and school officials. Following a Lincoln hearing,
Family Court issued a comprehensive and well-reasoned decision
detailing, among other things, the parties' respective parental
strengths and shortcomings, their level of acknowledgment of and
philosophical differences regarding the appropriate treatment
governing their daughter's disabilities, their respective


     1
        The June 2007 order apparently was incorporated but not
merged into the parties' 2009 judgment of divorce.
     2
        The child, who has certain learning disabilities and
developmental delays, began receiving early intervention services
as an infant and, as of the time of the hearing, had an
individualized education plan.
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abilities to engage and work in a cooperative fashion with the
child's service providers, the quality of their respective home
environments and their individual abilities to provide for their
child's intellectual and emotional development. Upon due
consideration thereof, Family Court awarded the mother sole legal
and physical custody of the child with significant visitation to
the father. This appeal by the father ensued.3

      Initially, the father does not dispute that the marked
deterioration in the parties' relationship and their
corresponding inability and/or unwillingness to work with one
another in a cooperative fashion for the sake of their child
constitutes a change in circumstances for purposes of satisfying
the mother's initial burden on her modification petition (see
Matter of Rockhill v Kunzman, 141 AD3d 783, 784 [2016]). For
those same reasons, there also is no question that joint legal
custody no longer is feasible (see Matter of Zahuranec v
Zahuranec, 132 AD3d 1175, 1176 [2015]). Hence, Family Court was
tasked with fashioning a custodial arrangement that would best
serve the child's interests. Upon reviewing the record as a
whole and giving due consideration to all of the relevant
factors, including "each parent's ability to furnish and maintain
a suitable and stable home environment for the child, past
performance, relative fitness, ability to guide and provide for
the child's overall well-being and willingness to foster a
positive relationship between the child and the other parent"
(Matter of Bailey v Blair, 127 AD3d 1274, 1276 [2015] [internal
quotation marks, brackets and citations omitted]; see Matter of
Coleman v Millington, 140 AD3d 1245, 1247 [2016]), as well as the
transcript of the Lincoln hearing (see Matter of Shokralla v
Banks, 130 AD3d 1263, 1265 [2015]), we are satisfied that Family
Court's decision to award sole legal and physical custody of the


    3
        During the pendency of this appeal, the parties filed
competing modification petitions, in addition to certain
enforcement and violation petitions. By order entered August 17,
2016, Family Court, among other things, dismissed the respective
modification petitions, declining to alter the custodial
arrangement set forth in its September 2015 order. Accordingly,
this appeal is not moot.
                              -4-                521859

child to the mother and expansive visitation to the father is
supported by a sound and substantial basis in the record.

      Here, Family Court was faced with the difficult task of
choosing between two loving but very different (and often
obstinate) parents – each of whom possesses largely
irreconcilable parenting philosophies (particularly with respect
to their appreciation of and willingness to seek outside help
with respect to their child's particular needs). According to
the father, the mother lacks the intellectual capacity and coping
skills to properly manage and resolve the child's behavioral
issues, has effectively delegated her parental decision making to
various third-party service providers and has demonstrated
impaired parental judgment by excluding him from important
decisions regarding the child's care and treatment. The mother,
on the other hand, contends that the father refuses to accept the
child's disabilities, does not support the recommended treatment
for the child's diagnosed ADHD, is opposed to the child's
enrollment in special education classes (preferring instead that
she "act like a regular child") and has effectively abdicated his
parental role by, among other things, failing to pursue needed
services for the child – believing instead that he alone is
capable of meeting her needs. Family Court, drawing upon its
"superior vantage point of observing the demeanor of the
witnesses who testified before it" (Matter of Ryan v Lewis, 135
AD3d 1135, 1137 [2016] [internal quotation marks and citation
omitted]), largely credited the testimony of the mother – finding
that the mother was "more aware of and involved with" the child's
teachers and service providers, had made "thoughtful, rational[]
decisions" with respect to the child's welfare and, on balance,
was capable of providing "a greater continuity of care" for the
child than the father (see Matter of Blagg v Downey, 132 AD3d
1078, 1080 [2015]). The court's findings in this regard are
fully supported by the testimony of numerous service providers,
who generally attested to the father's lack of involvement in,
opposition to and/or disruptive behavior regarding their efforts
to provide services to the child (see Matter of Virginia C. v
Donald C., 114 AD3d 1032, 1034 [2014]). Although Family Court
recognized the "important role" that the father played in the
child's life, including providing necessary structure and
discipline, it was, in the final analysis, the father's attitude,
                              -5-                  521859

demeanor and parenting style that prompted Family Court to award
sole legal and physical custody to the mother – taking care to
ensure that the father had frequent and meaningful access to the
child and, further, that he was kept apprised of the child's
medical and service providers and received appropriate notices
and updates from the child's school. Given that Family Court had
the opportunity to observe the parties and their respective
witnesses firsthand over the course of the lengthy fact-finding
hearing, and inasmuch as the court's findings are supported by a
sound and substantial basis in the record, we discern no basis
upon which to disturb the custodial arrangement fashioned by
Family Court. The father's remaining contentions are either
unpreserved for our review or have been examined and found to be
lacking in merit.

     Lynch, Rose, Clark and Aarons, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
