                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 16, 2015                      518757
________________________________

In the Matter of TAMMY DEMERS,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

GREGORY McLEAR,
                     Appellant.

(And Three Other Related
Proceedings.)
________________________________


Calendar Date:    June 2, 2015

Before:   Peters, P.J., Lahtinen, Garry and Lynch, JJ.

                              __________


      Cynthia Feathers, Rural Law Center of New York, Albany, for
appellant.

     A. Michael Gebo, Ogdensburg, for respondent.

     William J. Galvin, Potsdam, attorney for the child.

                              __________


Garry, J.

      Appeal from a modified order of the Family Court of St.
Lawrence County (Morris, J.), entered March 7, 2014, which, among
other things, granted petitioner's applications, in two
proceedings 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 parents of a child (born in
2012) who has lived since birth with the mother. In October
2012, an amended order was entered upon the consent of the
                              -2-                518757

parties and the attorney for the child, providing for the parties
to have joint legal custody with primary physical custody to the
mother, and establishing a schedule for parenting time by the
father, including specific periods to be supervised by the
paternal grandmother, and some unsupervised periods. Thereafter,
the mother commenced the current proceedings seeking to modify
that order, in addition to violation proceedings. Following a
hearing, Family Court dismissed the mother's violation petitions
and granted her petitions for modification. The subject order
grants the mother sole legal custody and establishes a limited
schedule of parenting time for the father, subject to certain
express conditions, including a direction that the father's other
children shall not be present during these periods of time. The
father appeals.

      "It is well established that, upon a request for
modification of a prior order, a threshold finding of a change in
circumstances is required before the court may proceed to a best
interests analysis" (Matter of Barbara L. v Robert M., 116 AD3d
1101, 1102 [2014] [citations omitted]). Here, although the
custody order entered upon agreement of the parties is entitled
to consideration in our analysis, "it is afforded less weight
than a determination rendered after a full hearing" (Matter of
Hetherton v Ogden, 79 AD3d 1172, 1174 [2010]; see Matter of
Hayward v Thurmond, 85 AD3d 1260, 1261 [2011]). The mother
testified that, on numerous occasions, the father did not have
the child ready at pick-up time, refused to discuss with her
matters related to the child's feeding, appropriate activities,
visitation and diaper changes, used obscene expletives and hung
up the phone on her. With due deference to Family Court's
credibility assessments (see Matter of Deyo v Bagnato, 107 AD3d
1317, 1318 [2013], lv denied 22 NY3d 851 [2013]), we find that
this testimony demonstrated the requisite change in circumstances
by revealing that the relationship between the parties had
deteriorated to the point that cooperation for the good of the
child was not possible (see Matter of Sonley v Sonley, 115 AD3d
1071, 1072 [2014]).

      We next review Family Court's determination that granting
sole custody to the mother was in the child's best interests. A
best interests determination requires consideration of several
                              -3-                518757

factors which "include, among others, maintaining stability for
the child[], the respective home environments, length of the
current custody arrangement, each parent's relative fitness and
past parenting performance, and willingness to foster a healthy
relationship with the other parent" (Matter of Chris X. v
Jeanette Y., 124 AD3d 1013, 1014 [2015] [internal quotation marks
and citation omitted]; see Matter of Parchinsky v Parchinsky, 114
AD3d 1040, 1041 [2014]). Here, the record reveals that the
father has fundamental deficiencies in his parenting abilities,
evidenced by several incidents in which he returned the child to
the mother with a soiled diaper and rashes, as well as several
occasions on which he failed to feed the child with the frozen
breast milk provided by the mother for visitations. On one
occasion, the child was returned to the mother sick with a fever
and, despite being advised of the child's condition, the father
admittedly did not call during the course of the following week
to learn how the child was doing. Moreover, as further addressed
below, the father admitted to a history of some inappropriate
conduct, apparently arising from striking or otherwise engaging
in some unspecified form of corporal punishment with one or more
of his older children. His testimony revealed that this conduct
had resulted in an unspecified prior criminal conviction and
probation, and an indicated child protective report (see Matter
of Brown v Akatsu, 125 AD3d 1163, 1166 [2015]; Matter of Melissa
K. v. Brian K., 72 AD3d 1129, 1131 [2010]).

      We fully agree with Family Court's assessment that the
record produced by the parties is scant as to a number of
potentially pertinent factors. Nevertheless, we find that the
evidence was sufficiently developed to support the custody
determination. Several important factors were addressed and
considered, including the mother's occupation as a registered
nurse, the fact that the child has resided with the mother since
birth, and her clear dedication to the child, as demonstrated in
her testimony. This is contrasted with the father's pattern of
inattention to the child and admitted history of some manner of
inappropriate physical conduct apparently involving discipline of
his older children. Accordingly, "[c]onsidering the record as a
whole, we find a sound and substantial basis in the record for
the court's award of sole custody to the mother" (Matter of Brown
v Akatsu, 125 AD3d at 1166).
                              -4-                518757

      As the father argues upon appeal, there is a dearth of
record evidence supporting the provision limiting all parenting
time with the father to periods when the child's older half
siblings are not present. Considering the father's testimony
upon cross-examination admitting to some prior unspecified
incidents apparently involving the corporal punishment of his
older children, meaningful support was not wholly lacking. These
prior incidents had resulted in the imposition of supervised
visitation with the older children. However, there was no
evidence produced to clarify or explain any detail or establish
any of the circumstances underlying these admissions. No
documents or other proof or testimony was offered or entered.
The father testified that the restrictions that had previously
been imposed had expired at the time of the hearing. Nothing
more was revealed, and the underlying facts were left wholly
undeveloped.

      Despite the argument by the attorney for the child that
limiting the father's time with this child to periods when the
half siblings are not present will protect the child by allowing
the father to focus on the child exclusively, the provision is
troubling. The law strongly favors the development and
encouragement of sibling bonds (see Matter of Crowder v Austin,
90 AD3d 753, 754 [2011], lv denied 18 NY3d 809 [2012]; Matter of
Valenti v Valenti, 57 AD3d 1131, 1135 [2008], lv denied 12 NY3d
703 [2009]; compare Matter of Brown v Akatsu, 125 AD3d at 1166).
The father's apparent history of inappropriate corporal
punishment certainly raises issues of significant concern.
Nonetheless, the issue is too poorly developed in the record to
support the argument advanced by the attorney for the child. In
essence, the argument is that allowing the children to be
together in the father's company will result in an increased risk
of danger to the child. Based upon this limited record, this
assertion is unduly speculative. As a practical matter, this
ruling deems any time spent with the half siblings to be
detrimental to the child, and deprives the child of all contact
with them. This result is notably at odds with established
precedent and cannot be accepted, especially in the complete
absence of proof that there are no possible circumstances in
which – perhaps with assistance or supervision for the father –
the children could be together without any resulting detriment to
                              -5-                  518757

the child. Moreover, the record does not permit this Court to
make an appropriate determination. Accordingly, we remit to
Family Court for further development of the evidence, and to
fashion an appropriate order based upon what it may find to be
the best interests of the subject child, with due regard for the
encouragement of sibling relationships, to the extent possible
(see Matter of Kiernan v Kiernan, 114 AD3d 1045, 1046 [2014];
Matter of Jodi S. v Jason T., 85 AD3d 1239, 1242-1244 [2011]).

     Peters, P.J., Lahtinen and Lynch, JJ., concur.



      ORDERED that the modified order is modified, on the law,
without costs, by reversing so much thereof as prohibited
respondent from having his older children present during his time
with the subject child; matter remitted to the Family Court of
St. Lawrence County for further proceedings not inconsistent with
this Court's decision and, pending said proceedings, the
visitation terms of said order shall remain in effect on a
temporary basis; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
