                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: March 31, 2016                     521192
________________________________

In the Matter of AMBER KNOX,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

BRET S. ROMANO,
                    Appellant.
________________________________


Calendar Date:    February 9, 2016

Before:   Peters, P.J., McCarthy, Egan Jr. and Lynch, JJ.

                              __________


      Susan Patnode, Rural Law Center of New York, Castleton
(Cynthia Feathers of counsel), for appellant.

     Rosemarie Richards, Gilbertsville, for respondent.

      Christopher Hammond, Cooperstown, attorney for the
children.

                              __________


Peters, P.J.

      Appeal from an order of the Family Court of Otsego County
(Burns, J.), entered April 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 and
visitation.

      Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the parents of two children (born in
2007 and 2008). Pursuant to a stipulated order entered in
December 2009, the parties shared joint legal custody of the
children, with primary physical custody to the mother. The
father was provided with overnight parenting time every Tuesday
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evening to Wednesday morning, every Thursday evening to Friday
morning, and on alternate weekends from Saturday morning to
Sunday evening. In July 2014, the mother commenced this
proceeding seeking sole legal custody of the children and a
reduction in the father's visitation. Following a fact-finding
hearing, Family Court issued an order which, among other things,
granted the mother sole legal custody and reduced the father's
parenting time by eliminating his Thursday to Friday weekly
overnight visits. The father appeals.

      "A parent seeking to modify an existing custody 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" (Matter of Menhennett v
Bixby, 132 AD3d 1177, 1179 [2015] [citations omitted]; see Fermon
v Fermon, 135 AD3d 1045, 1046 [2016]; Matter of Hrostowski v
Micha, 132 AD3d 1103, 1104 [2015]). Here, Family Court's
determination that the parties are no longer capable of
communicating effectively and amicably with one another for the
sake of their children is grounded upon adequate record support.
The parties' conceded inability to engage in cooperative
decision-making demonstrated that joint legal custody was no
longer workable, thereby triggering an inquiry into what
custodial arrangement would promote the best interests of the
children (see Matter of Sonley v Sonley, 115 AD3d 1071, 1072
[2014]; Matter of Williams v Williams, 66 AD3d 1149, 1150-1151
[2009]; Matter of Omahen v Omahen, 64 AD3d 975, 976 [2009]).

      Factors relevant to determining the children's best
interests include "maintaining stability in the children's lives,
the quality of respective home environments, the length of time
the present custody arrangement has been in place, each parent's
past performance, relative fitness and ability to provide for and
guide the children's intellectual and emotional development, and
the effect the award of custody to one parent would have on the
children's relationship with the other parent" (Matter of Melody
M. v Robert M., 103 AD3d 932, 933 [2013] [internal quotation
marks and citations omitted], lv denied 21 NY3d 859 [2013]; see
Matter of Zahuranec v Zahuranec, 132 AD3d 1175, 1176 [2015]).
Here, while it is clear that both parties are loving and devoted
parents, the mother is more able to provide the children with
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greater stability. She is steadily employed and maintains a
structured environment for the children with her fiancé. The
father, who works seasonally as a self-employed umpire, does not
have a driver's license due to his various driving while
intoxicated convictions and relies on his mother for
transportation. Further, the father exhibited questionable
judgment by both traveling in a vehicle with the children without
placing them in their car seats and permitting the children to
remain atop a roof while he was doing repairs. Taken as a whole,
the record provides the requisite sound and substantial basis for
Family Court's determination that it was in the best interests of
the children to award sole legal custody to the mother (see
Matter of Melody M. v Robert M., 103 AD3d at 933-934; Matter of
Spiewak v Ackerman, 88 AD3d 1191, 1192-1193 [2011]; Matter of
Jennifer G. v Benjamin H., 84 AD3d 1433, 1434 [2011]).

      Turning to visitation, we agree with Family Court that a
change in circumstances has been demonstrated and that a
modification of the then-existing visitation schedule is
necessary to ensure the children's best interests (see Matter of
Carr v Stebbins, 135 AD3d 1013, 1014 [2016]; Nolan v Nolan, 104
AD3d 1102, 1105 [2013]). The mother described the children as
being anxious and confused regarding the midweek visitation
schedule and stated that they constantly questioned who was
picking them up at school each day. She also testified that the
older child had recently enrolled in certain extracurricular
activities and expressed concern about relying on the father to
facilitate the child's attendance. As Family Court found, the
current schedule – which called for the children to alternate
between the parents' homes on a daily basis throughout the school
week – had a negative impact upon the children's emotional state,
and we agree that the children's best interests are served by
eliminating the father's weekly Thursday to Friday overnight
visits so as to provide more structure and consistency.

      However, Family Court did not articulate a reason as to why
an overall reduction in the father's parenting time was in the
children's best interests (see Matter of Jennifer G. v Benjamin
H., 84 AD3d at 1434; Matter of Laware v Baldwin, 42 AD3d 696, 697
[2007]), and we do not find a sound and substantial basis in the
record that would support such a finding. Notwithstanding his
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shortcomings, the father has faithfully attended his visits with
the children, has developed a significant relationship with them
and has been a consistent figure in their young lives. The
mother freely acknowledged that the children enjoy their time
with the father and, although certainly not dispositive, the
attorney for the children both at the hearing and on this appeal
took the position that the father's parenting time should not be
reduced. Inasmuch as our authority in custody and visitation
matters is as broad as that of Family Court and the record is
sufficiently complete to permit an informed modification of the
visitation provisions (see Bowman v Engelhart, 112 AD3d 1187,
1189 [2013]; Matter of Burton v Barrett, 104 AD3d 1084, 1086
[2013]), we find that the children's interests will be best
served by increasing the father's alternate weekend parenting
time so as to provide roughly the same number of total hours of
visitation that he received under the prior order. Therefore,
commencing 30 days from the date of this decision, the father's
alternating weekend parenting time will be from Friday at the
close of school, or from 3:00 p.m. if school is not in session,
until Monday morning at the commencement of school, or until 9:00
a.m. if school is not in session. The father shall be
responsible for the children's transportation to and from such
visits.

     McCarthy, Egan Jr. and Lynch, JJ., concur.



      ORDERED that the order is modified, on the law, without
costs, by awarding respondent additional parenting time as set
forth in this Court's decision, and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
