        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

302
CAF 12-00796
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF HEATHER A. COLE,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

MICHAEL JAMES NOFRI, RESPONDENT-RESPONDENT.
-----------------------------------------------
KELLY M. CORBETT, ESQ., ATTORNEY FOR THE CHILD,
APPELLANT.


KELLY M. CORBETT, ATTORNEY FOR THE CHILD, FAYETTEVILLE, APPELLANT PRO
SE.

WILLIAM M. BORRILL, NEW HARTFORD, FOR PETITIONER-APPELLANT.

GETNICK, LIVINGSTON, ATKINSON & PRIORE, LLP, UTICA (THOMAS L. ATKINSON
OF COUNSEL), FOR RESPONDENT-RESPONDENT.


     Appeal from an order of the Family Court, Oneida County (James R.
Griffith, J.), entered April 6, 2012 in a proceeding pursuant to
Family Court Act article 6. The order, insofar as appealed from,
dismissed that part of the petition seeking a modification of custody.

     It is hereby ORDERED that the order insofar as appealed from is
reversed on the law without costs, the petition is granted in part by
awarding primary physical custody of the child to petitioner and
visitation to respondent, and the matter is remitted to Family Court,
Oneida County, for further proceedings in accordance with the
following Memorandum: Petitioner mother commenced this proceeding
seeking, inter alia, to modify a prior order of joint custody granting
respondent father physical custody of the parties’ child (child) by
awarding physical custody of the child to her. As limited by their
briefs, the mother and the Attorney for the Child (AFC) appeal from
the order insofar as it dismissed that part of the petition seeking a
modification of the parties’ custody arrangement on the ground that
the mother failed to establish a change in circumstances.

     A party seeking a change in an established custody arrangement
has the “burden of establishing a change in circumstances sufficient
to warrant an inquiry into whether the best interests of the child
warranted a change in custody” (Matter of York v Zullich, 89 AD3d
1447, 1448). Although, as a general rule, the custody determination
of the trial court is entitled to great deference (see Eschbach v
Eschbach, 56 NY2d 167, 173-174), “[s]uch deference is not warranted .
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. . where the custody determination lacks a sound and substantial
basis in the record” (Fox v Fox, 177 AD2d 209, 211-212). Moreover,
“[o]ur authority in determinations of custody is as broad as that of
Family Court” (Matter of Bryan K.B. v Destiny S.B., 43 AD3d 1448,
1450; see Matter of Louise E.S. v W. Stephen S., 64 NY2d 946, 947).

     We agree with the mother and the AFC that the mother met her
burden of establishing a change of circumstances. Since the original
custody trial, each party has remarried and has had two additional
children who are younger than the subject child, and the father has
two step-children who are older than the subject child. The evidence
established that the child felt isolated in the father’s home and
indicated a strong desire to live with the mother. While a 10-year-
old child’s preference regarding the parent with which he or she would
like to reside is not dispositive, it is a factor to consider in
determining whether there has been a change in circumstances (see
Matter of Taylor v Rivera, 261 AD2d 947, 948; see generally Matter of
Dorsa v Dorsa, 90 AD3d 1046, 1047). The evidence further established
that the child’s anxiety with respect to living with the father has
progressed to the point where he has expressed to others his thoughts
of harming the father and the father’s family, which led the parties
to agree that the child needs counseling.

     The father contends that, inasmuch as there was no showing that
he was unfit or less fit than the mother, the current custodial
arrangement should not be altered simply to accommodate the desires of
the child (see Fox, 177 AD2d at 211). We reject the father’s
contention that the current custodial arrangement should not be
changed. The Court of Appeals has cautioned that “[t]he only absolute
in the law governing custody of children is that there are no
absolutes” (Friederwitzer v Friederwitzer, 55 NY2d 89, 93), and that
“no one factor, including the existence of the earlier decree or
agreement, is determinative of whether there should, in the exercise
of sound judicial discretion, be a change in custody” (id. at 93-94).
We conclude that this case is unique because the record establishes
that the child suffers from extreme anxiety as a result of the current
custodial arrangement. Although the reason for his anxiety is not
clear, it is clear that the child is not doing well under the current
arrangement. Thus, on this record, we conclude that there has been a
sufficient change in circumstances warranting an inquiry into whether
the best interests of the child would be served by modifying the
existing custody arrangement.

     Inasmuch as the record is sufficient for this Court to make a
best interests determination, we will do so “in the interests of
judicial economy and the well-being of the child” (Bryan K.B., 43 AD3d
at 1450). After reviewing the relevant factors (see Fox, 177 AD2d at
210), we conclude that it is in the child’s best interests to award
the mother primary physical custody of the child. While the father
has been the primary residential parent for the past five years, the
mother is better able to provide for the child’s emotional needs. The
evidence established that the child confided in the mother and felt
secure addressing his emotional issues with her, whereas he was afraid
to discuss any issues or problems with the father. Given the child’s
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anxiety, the mother’s ability to provide for the child’s emotional
needs is a factor that should be accorded greater weight. We
therefore reverse the order insofar as appealed from and grant the
petition in part by awarding the mother primary physical custody of
the child and visitation to the father, and we remit the matter to
Family Court to fashion an appropriate visitation schedule.

     All concur except MARTOCHE, J., who dissents and votes to affirm
in the following Memorandum: I respectfully dissent and would affirm
the order that, inter alia, dismissed the petition. Preliminarily, I
note that the parties were divorced in December 2005, and the child
who is the subject of this proceeding (child) had just turned four
years old at that time. Following a trial, the parties were granted
joint custody of the child, and respondent father was granted primary
physical custody. Although the transcript of that trial is not
included in the record on appeal, I can only conclude that a
determination was made that it was in the best interests of the child
for the father to have primary physical custody. In November 2006,
petitioner mother filed a petition seeking a modification of the
parties’ custody arrangement by awarding her sole legal and physical
custody of the child (2006 modification petition). The mother alleged
two changes in circumstances, namely that the child was “forced to
endure excessive ‘shuffling’ between the parties, created by [the
father’s] change of hours at his job” and that the child was suffering
from emotional difficulties, including separation anxiety stemming
from his separation from the mother. The 2006 modification petition,
according to the accompanying decision of Supreme Court, also alleged
that the child displayed aggression toward his teacher and “created a
huge disruption [in] his class.” The child apparently underwent a
psychological evaluation in January 2005 because of his temper
tantrums and separation anxiety, and was diagnosed in March 2005 with
an “Adjustment Disorder Unspecific.” With respect to the 2006
modification petition, Supreme Court concluded that the mother failed
to show the requisite change in circumstances. The court expressed
its concern regarding the child’s emotional problems, but the court
noted that the mother was aware of the child’s alleged difficulties
with temper tantrums and separation anxiety as early as January 2005,
i.e., well before the judgment of divorce and initial custody
determination.

     In January 2011, the mother commenced this proceeding and again
sought a modification of the parties’ custody arrangement. Family
Court interviewed the child in camera in September 2011, and in
November 2011 a lengthy trial was held on the petition. The court
heard testimony from the parties, relatives of the parties, the new
spouses of each party, parents of children who played with the subject
child, and the child’s teachers and coaches. The court also heard
testimony from a clinical social worker, who had several counseling
sessions with the child. The social worker testified that the child
told her that he felt “left out” when he was at the father’s house and
that he wanted to “pound [the father] with [a] mallet.” On another
occasion, the child told her that he wanted to slit the father’s
throat. The social worker admitted that she was unaware that the
father was the primary custodial parent, and further admitted that she
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did not contact the father for several months after seeing the child.

     Following the trial, the court concluded that the mother had
failed to meet her burden of establishing a change in circumstances.
Specifically, the court found that the explanations given by or on
behalf of the child concerning why he did not want to live with the
father were not supported by the credible evidence. The court further
concluded that the child’s hostility was “exacerbated by the parents’
juvenile inability to agree on appropriate counseling” for the child.
The court determined that, although the child would be “somewhat more
comfortable” in the mother’s house, both households were suitable and
neither the mother nor the attorney for the child demonstrated a real
need for a change in custody. The court stated its concern that
applying the “simple standard” of what is “currently” best for the
child would create the “risk [that the child would need to] change
residences [from] year to year, season to season, or even month to
month.” The court, citing Fox v Fox (177 AD2d 209), further
recognized that a child of 10 or 11 years of age generally is not of
sufficient maturity to weigh intelligently the factors necessary to
make a wise choice as to custody. Finally, the court noted that the
child expressed a strong desire not to reside with the father despite
the child’s inability to “identify serious specific problems” at the
father’s house, and stated its belief that “incessant pressure” by the
mother to transfer custody of the child to her had affected the
child’s emotional well-being.

     It is well settled that this Court will not disturb a custody
determination of Family Court where there is a sound and substantial
basis in the record for that determination (see Matter of Matthews v
Matthews, 72 AD3d 1631, 1632, lv denied 15 NY3d 704), particularly if
that determination is based upon the court’s “first-hand assessment of
the credibility of the witnesses” (Matter of Howden v Keeler, 85 AD3d
1561, 1562 [internal quotation marks omitted]). Moreover, a party
seeking modification of an established custody arrangement must show a
change in circumstances reflecting “a real need for change to ensure
the best interest[s] of the child” (Matter of Di Fiore v Scott, 2 AD3d
1417, 1417 [internal quotation marks omitted]). The majority
concludes that the child’s desire to reside with the mother should be
considered when determining whether there has been a change in
circumstances. As the majority recognizes, a 10-year-old child’s
preference is not dispositive of the issue whether there has been a
change in circumstances, but the express wishes of an older and more
mature child may support a finding of a change in circumstances (see
Matter of Burch v Willard, 57 AD3d 1272, 1273). Here, the court
expressly concluded that the child was not of sufficient maturity to
make a “wise choice as to custody” (Fox, 177 AD2d at 211), and I see
no reason to disturb that determination.

     The majority also concludes that the child’s “anxiety with
respect to living with the father” constitutes a sufficient change in
circumstances to warrant a best interests analysis. I disagree. As
noted, the father was given primary physical custody of the child when
the child was four years old, and the mother shortly thereafter sought
a modification of that custody arrangement on the ground that the
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child was suffering emotional trauma and separation anxiety. At that
time, Supreme Court dismissed the 2006 modification petition without a
hearing. Clearly, the mother has a pattern of alleging that the child
is suffering from emotional disturbances as a result of living with
the father. I can only conclude, however, that, at the time of the
original custody determination, Supreme Court concluded based on its
assessment of the hearing testimony that it was in the best interests
of the child to reside with the father.

     Even assuming, arguendo, that the mother established a sufficient
change in circumstances in the instant matter to warrant a best
interests analysis (see generally Matter of Burrell v Burrell, 100
AD3d 1545, 1545), I nevertheless disagree with the majority’s decision
to modify the parties’ custody arrangement. Although the majority
concludes that the record is sufficient for this Court to make its own
best interests determination, I note that there was no expert
testimony on that issue, and the only “expert” who testified was a
social worker who saw the child at the mother’s request and without
notification thereof to the father. On this record, I would be
reluctant to make a best interests determination without any expert
testimony regarding the underlying basis for the child’s thoughts of
harming the father and the child’s anxiety with respect to living with
the father. If I were to make a best interests determination, as the
majority does, I would conclude that the existing custody arrangement
should remain in place. First, the factor regarding the continuity
and stability of the existing custody arrangement weighs in favor of
the father (see Fox, 177 AD2d at 210). Additionally, the record
establishes that both parties are relatively fit and loving parents
and are equally able to provide for the financial needs of the child.
The primary facts favoring the mother as custodial parent are that the
child gets along better with his stepfather than with his stepmother,
the child is unhappy in the father’s house because he feels ignored
there, and he feels more nurtured and comfortable with the mother. In
my view, the fact that the child gets along better with the members of
one of the households should not necessitate a transfer in custody.
As the court noted, relying on what is currently “best” for the child
would create the risk that the child would need to change residences
frequently. Additionally, I hesitate to transfer custody without some
expert testimony regarding the child’s interactions with the parties.
Unlike the majority, I do not believe that this case is “unique,” but
rather I believe that it involves facts that are common in divorce,
i.e., a child suffering from the effects of living in two households,
particularly where each parent has remarried and there are step-
siblings residing in each household. Thus, I would defer to the
judgment of Family Court, which heard voluminous testimony over
several days, conducted an in camera interview with the child, and
made specific findings of fact and conclusions of law based upon the
testimony. I would, therefore, affirm the order.



Entered:   June 14, 2013                       Frances E. Cafarell
                                               Clerk of the Court
