                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 2, 2016                      518764B
________________________________

In the Matter of DAVID J.,
                    Respondent,
      v
                                            MEMORANDUM AND ORDER
LEEANN K.,
                    Appellant.
________________________________


Calendar Date:   April 22, 2016

Before:   Garry, J.P., Egan Jr., Lynch, Clark and Mulvey, JJ.

                             __________


      Susan Patnode, Rural Law Center of New York, Castleton
(George J. Hoffman Jr. of counsel), for appellant.

     Carol Malz, Oneonta, for respondent.

     Christine McCue, Central Bridge, attorney for the child.

                             __________


Mulvey, J.

      Appeal from an order of the Family Court of Otsego County
(Burns, J.), entered March 17, 2014, which granted petitioner's
application, in a proceeding pursuant to Family Ct Act article 6,
to modify a prior order of custody and visitation.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the parents of a daughter (born in
2002). In 2010, Family Court awarded sole legal and physical
custody of the child to the mother and parenting time to the
father. In June 2013, the father commenced this proceeding to
modify the 2010 custody order. In September 2013, Family Court
entered an interim order awarding the father physical custody of
the child until there was a final ruling on his modification
                               -2-                518764B

petition. Following a fact-finding hearing and a Lincoln
hearing, the court granted the father's application and awarded
sole legal and physical custody of the child to the father and
limited parenting time to the mother. Family Court's order also
prohibited, among other things, the mother's husband (hereinafter
the stepfather) from acting as the child's "sole caretaker" and
prohibited the mother from consuming or permitting any third
party to consume "any alcohol, or drugs, [eight] hours before, or
during" visitation time. The mother appeals.

      "A parent seeking to modify an existing custody [and
visitation] order first must demonstrate that a change in
circumstances has occurred since the entry thereof that is
sufficient to warrant the court undertaking a best interests
analysis in the first instance" (Matter of Ryan v Lewis, 135 AD3d
1135, 1136 [2016] [internal quotation marks and citations
omitted]; see Matter of Carr v Stebbins, 135 AD3d 1013, 1014
[2016]; Matter of Sparbanie v Redder, 130 AD3d 1172, 1172 [2015];
Matter of McIntosh v Clary, 129 AD3d 1392, 1392 [2015]). "We
accord great deference to Family Court's factual findings and
credibility determinations given its superior position to observe
and assess the witnesses' testimony and demeanor firsthand, and
will not disturb its custodial determination if supported by a
sound and substantial basis in the record" (Matter of Daniel TT.
v Diane TT., 127 AD3d 1514, 1515 [2015] [citations omitted]; see
Matter of Flood v Flood, 63 AD3d 1197, 1198 [2009]).

      Family Court made an express finding that there was a
change in circumstances based on the mother's exposure of the
child to several domestic violence incidents. It appears that
the mother does not dispute that a change in circumstances
warranted an inquiry into whether the best interests of the child
would be served by modifying the 2010 order.1 Rather, the mother


     1
        In any event, the record supports Family Court's finding
that a change in circumstances occurred – namely, the mother's
unstable housing conditions and her exposure of the child to
instances of domestic violence – to warrant an inquiry into
whether modification of the prior custody order was in the
child's best interests (see Matter of Fountain v Fountain, 130
                              -3-                518764B

contends that a sound and substantial basis in the record does
not exist to support Family Court's award of sole legal and
physical custody to the father because the evidence adduced at
trial demonstrated that the parties were able to "communicate
effectively and work together" — apparently arguing that the
parties should have joint legal custody of the child. The mother
also contends that Family Court abused its discretion "by
imposing unsupported and overbroad restrictions on [her] conduct"
during her visitation time with the child. Specifically, she
takes issue with the prohibition on her or any third party's
consumption of alcohol or drugs eight hours before or during her
visitation time. The father counters that there was a sound and
substantial basis for the court's decision. The attorney for the
child agrees that Family Court properly modified the 2010 custody
order.

      In order to determine whether a modification of an existing
custody order is in a child's best interests, a court must
consider several factors, including "the relative fitness,
stability, past performance, and home environment of the parents,
as well as their ability to guide and nurture the child[] and
foster a relationship with the other parent" (Matter of Rohde v
Rohde, 135 AD3d 1011, 1012 [2016] [internal quotation marks and
citations omitted]; see Matter of Hill v Dean, 135 AD3d 990, 991
[2016]). Evidence adduced at trial demonstrated that the mother
placed her emotional needs ahead of the safety of the child and
that she did not maintain a stable home environment for the child
(see Matter of Fountain v Fountain, 130 AD3d 1107, 1108 [2015];
Matter of Lawrence v Kowatch, 119 AD3d 1004, 1004-1005 [2014];
Matter of Opalka v Skinner, 81 AD3d, 1005, 1006 [2011]).
"Although an award of joint custody is an aspirational goal"
(Matter of Ryan v Lewis, 135 AD3d at 1136-1167 [internal
quotation marks, brackets and citations omitted]; see Matter of
Michael GG. v Melissa HH., 97 AD3d 993, 994-995 [2012]), the
record clearly demonstrates that joint legal custody was not
feasible when the mother and the father's relationship evidenced
their inability to effectively and directly communicate with one


AD3d 1107, 1108 [2015]).
                              -4-                518764B

another to care for the child's needs (see Matter of Ryan v
Lewis, 135 AD3d at 1137). The father testified that he had
attempted to talk with the mother "about a number of things";
however, he believed that his attempts were "a waste of time"
because the mother or her paramour would instigate an argument
with him while the child was present. Instead, the father's wife
had to act as a liaison between the father and the mother and
communicated with the mother via text message regarding the
child's visitation. The father also testified that the mother
took away the child's cell phone "on a fairly regular basis,"
and, as a result, he was unable to communicate with the child.
The record is replete with evidence demonstrating the mother's
repeated decisions to expose the child to instances of domestic
violence and excessive consumption of alcohol. Taking into
account the father's stable household and his ability to care for
the child, Family Court properly awarded sole physical and legal
custody to the father (see Matter of Rohde v Rohde, 135 AD3d at
1012; Matter of Hill v Dean, 135 AD3d at 991; Matter of Hayward v
Campbell, 104 AD3d 1000, 1001 [2013]).

      Finally, in light of the testimony regarding the domestic
violence incidents and alcohol consumption by the mother, her
paramour and the stepfather, Family Court's visitation order
reflected the best interests of the child (see Matter of Mayo v
Mayo, 63 AD3d 1207, 1209 [2009]; compare Matter of Christopher T.
v Jessica U., 90 AD3d 1092, 1094 [2011]). Family Court is
"afforded wide discretion in crafting an appropriate visitation
schedule" (DeLorenzo v DeLorenzo, 81 AD3d 1110, 1112 [2011], lv
dismissed 16 NY3d 888 [2011]) and "has the power to impose
restrictions on [a] child[]'s interactions with third parties
during visitation if it is in the child[]'s best interests to do
so" (Matter of Mayo v Mayo, 63 AD3d at 1209). Here, the
stepfather, a convicted felon and acknowledged alcoholic,
admitted that he still drinks alcoholic beverages. However, we
find Family Court's restrictions to be overly broad in that they
could be interpreted to prohibit visitation with the child in
public gatherings where alcoholic beverages are consumed, as well
as the use of prescribed or legal drugs by the mother or others.
We also note that Family Court's order omits explicit authority
for the mother to access the child's medical and school records.
                              -5-                  518764B

      Accordingly, we modify Family Court's order by directing
that the mother shall have full access to all of the child's
medical and school records, that the father shall be responsible
for keeping the mother promptly informed about his choice of
doctors, the child's medical appointments, medical reports and
extracurricular activities and that the father shall also be
responsible for keeping the mother informed with respect to all
school reports and the times of all meetings, teacher conferences
and other school-related activities. In addition, the fifth
paragraph of said order should be modified to provide that the
mother shall not consume any alcoholic beverages or unlawful
substances eight hours before or during any time that the child
is in her care, nor shall she allow any interaction between the
child and any third party who is under the influence of alcoholic
beverages or unlawful substances within said time period.


     Garry, J.P., Egan Jr., Lynch and Clark, JJ., concur.



      ORDERED that the order is modified, on the facts, without
costs, by (1) providing respondent access to and information
regarding the child's medical and school records and appointments
and extracurricular activities as more fully set forth herein,
and (2) restricting interaction with the child by respondent or
any third party as more fully set forth herein, and, as so
modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
