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In re Matter of C.M. v. Z.N.
Date: 09-12-2024
Case Number: CF-23-1269
Judge: Clark
Court: Supreme Court, Tioga County, New York
Plaintiff's Attorney:
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Defendant's Attorney:
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Description:
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of one child (born in 2008). Pursuant to a 2015 judgment of divorce, the parties shared legal custody of the child, while the mother was granted primary physical custody and the father had specified periods of parenting time. After a neglect proceeding was commenced against the mother in Connecticut, where she and the child resided, the child began residing with the father in Tioga County in December 2020. Then, in April 2022, the mother consented to an adjudication of neglect and to an order granting sole physical custody to the father and joint legal custody to both parents. [1]
The mother filed the instant modification petition in October 2022 seeking "immediate and frequent visitation" with the child. The mother also filed a petition alleging that the father had violated a prior Connecticut temporary order that set forth specific periods of parenting time. Following a fact-finding hearing on both petitions, Family Court issued a written decision finding that the parties were unable to coparent and that the mother had failed to establish that the father violated a prior order. The court also issued a concurrent order modifying the Connecticut order by awarding sole legal and primary physical custody of the child to the father and granting the mother parenting time as the parties agree, taking into consideration the child's wishes. Days later, Family Court issued an amended order, identical in every respect except that it removed the language considering the child's wishes; as such, the mother's parenting time was directed to occur as the parties agree. The mother appeals from Family Court's written decision and from the amended order. [2]
Initially, although Family Court did not expressly find that the mother established the requisite change in circumstances, the parties agree that such a showing was made. Here, the breakdown of the mother's relationship with the child suffices to establish a change in circumstances necessitating an inquiry into whether modification of the prior order would serve the best interests of the child (see Matter of Lora PP. v Alphonso PP., 221 A.D.3d 1321, 1322 [3d Dept 2023]; Matter of Laura E. v John D., 216 A.D.3d 1274, 1274 [3d Dept 2023]). On appeal, the mother challenges two aspects of Family Court's amended order: the granting of sole legal custody to the father and the delegation of the mother's parenting time to the father. [3] The father and the attorney for the child argue that the amended order is supported by a sound and substantial basis in the record. We agree with the mother on both grounds and therefore reverse.
As to legal custody, we note that "joint legal custody is an aspirational goal in every custody matter[ but]... may not be feasible or appropriate in cases where the parents are unable to effectively and directly communicate with one another to care for the child's needs" (Matter of Brenna EE. v Andrew DD., 214 A.D.3d 1039, 1040 [3d Dept 2023] [internal quotation marks and citations omitted]; see Matter of Christina E. v Clifford F., 200 A.D.3d 1111, 1112 [3d Dept 2021]). Here, the mother was the sole witness to testify at the fact-finding hearing, and the breadth of her testimony focused on the difficulties she faced in exercising parenting time with the subject child. The mother admitted that the child had directly expressed reluctance to spending time together, but she repeatedly posited that the child's statements were a reflection of the father's sabotage. Family Court did not find such accusations credible, but the mother's testimony reveals that there is acrimony between the parties. However, even deferring to Family Court's credibility determinations (see Matter of John EE. v Jalyssa GG., 222 A.D.3d 1219, 1221 [3d Dept 2023]; Matter of Thomas BB. v Jessica YY., 219 A.D.3d 1578, 1580 [3d Dept 2023]), the record is devoid of any indication that the parties are unable to effectively communicate to meet the child's needs, or that joint legal custody has been otherwise rendered unfeasible or inappropriate (see Matter of David JJ. v Verna-Lee KK., 207 A.D.3d 841, 844 [3d Dept 2022]; compare Matter of Brett J. v Julie K., 209 A.D.3d 1141, 1143-1144 [3d Dept 2022]; Matter of Sabrina B. v Jeffrey B., 179 A.D.3d 1339, 1341-1342 [3d Dept 2020]). As the record lacks support for granting the father sole legal custody, we must reverse that portion of the amended order and revert the parties to joint legal custody pursuant to the April 2022 Connecticut order (see Matter of Adams v Bracci, 61 A.D.3d 1065, 1067 [3d Dept 2009], lv denied 12 N.Y.3d 712 [2009]). [4]...
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Owego, New York family law lawyers represented the parties in a divorce.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of one child (born in 2008). Pursuant to a 2015 judgment of divorce, the parties shared legal custody of the child, while the mother was granted primary physical custody and the father had specified periods of parenting time. After a neglect proceeding was commenced against the mother in Connecticut, where she and the child resided, the child began residing with the father in Tioga County in December 2020. Then, in April 2022, the mother consented to an adjudication of neglect and to an order granting sole physical custody to the father and joint legal custody to both parents. [1]
The mother filed the instant modification petition in October 2022 seeking "immediate and frequent visitation" with the child. The mother also filed a petition alleging that the father had violated a prior Connecticut temporary order that set forth specific periods of parenting time. Following a fact-finding hearing on both petitions, Family Court issued a written decision finding that the parties were unable to coparent and that the mother had failed to establish that the father violated a prior order. The court also issued a concurrent order modifying the Connecticut order by awarding sole legal and primary physical custody of the child to the father and granting the mother parenting time as the parties agree, taking into consideration the child's wishes. Days later, Family Court issued an amended order, identical in every respect except that it removed the language considering the child's wishes; as such, the mother's parenting time was directed to occur as the parties agree. The mother appeals from Family Court's written decision and from the amended order. [2]
Initially, although Family Court did not expressly find that the mother established the requisite change in circumstances, the parties agree that such a showing was made. Here, the breakdown of the mother's relationship with the child suffices to establish a change in circumstances necessitating an inquiry into whether modification of the prior order would serve the best interests of the child (see Matter of Lora PP. v Alphonso PP., 221 A.D.3d 1321, 1322 [3d Dept 2023]; Matter of Laura E. v John D., 216 A.D.3d 1274, 1274 [3d Dept 2023]). On appeal, the mother challenges two aspects of Family Court's amended order: the granting of sole legal custody to the father and the delegation of the mother's parenting time to the father. [3] The father and the attorney for the child argue that the amended order is supported by a sound and substantial basis in the record. We agree with the mother on both grounds and therefore reverse.
As to legal custody, we note that "joint legal custody is an aspirational goal in every custody matter[ but]... may not be feasible or appropriate in cases where the parents are unable to effectively and directly communicate with one another to care for the child's needs" (Matter of Brenna EE. v Andrew DD., 214 A.D.3d 1039, 1040 [3d Dept 2023] [internal quotation marks and citations omitted]; see Matter of Christina E. v Clifford F., 200 A.D.3d 1111, 1112 [3d Dept 2021]). Here, the mother was the sole witness to testify at the fact-finding hearing, and the breadth of her testimony focused on the difficulties she faced in exercising parenting time with the subject child. The mother admitted that the child had directly expressed reluctance to spending time together, but she repeatedly posited that the child's statements were a reflection of the father's sabotage. Family Court did not find such accusations credible, but the mother's testimony reveals that there is acrimony between the parties. However, even deferring to Family Court's credibility determinations (see Matter of John EE. v Jalyssa GG., 222 A.D.3d 1219, 1221 [3d Dept 2023]; Matter of Thomas BB. v Jessica YY., 219 A.D.3d 1578, 1580 [3d Dept 2023]), the record is devoid of any indication that the parties are unable to effectively communicate to meet the child's needs, or that joint legal custody has been otherwise rendered unfeasible or inappropriate (see Matter of David JJ. v Verna-Lee KK., 207 A.D.3d 841, 844 [3d Dept 2022]; compare Matter of Brett J. v Julie K., 209 A.D.3d 1141, 1143-1144 [3d Dept 2022]; Matter of Sabrina B. v Jeffrey B., 179 A.D.3d 1339, 1341-1342 [3d Dept 2020]). As the record lacks support for granting the father sole legal custody, we must reverse that portion of the amended order and revert the parties to joint legal custody pursuant to the April 2022 Connecticut order (see Matter of Adams v Bracci, 61 A.D.3d 1065, 1067 [3d Dept 2009], lv denied 12 N.Y.3d 712 [2009]). [4]...
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Outcome:
"ORDERED that the amended order is reversed, on the law, without costs, matter remitted to the Family Court of Tioga County for further proceedings not inconsistent with this Court's decision, and, pending said proceedings, the terms of the April 2022 Connecticut order shall remain in effect." C.M. v. Z.N., 2024
NY Slip Op 04427, CV-23-1269 (N.Y. App. Div. Sep 12, 2024)
NY Slip Op 04427, CV-23-1269 (N.Y. App. Div. Sep 12, 2024)
Plaintiff's Experts:
Defendant's Experts:
Comments:
About This Case
What was the outcome of In re Matter of C.M. v. Z.N.?
The outcome was: "ORDERED that the amended order is reversed, on the law, without costs, matter remitted to the Family Court of Tioga County for further proceedings not inconsistent with this Court's decision, and, pending said proceedings, the terms of the April 2022 Connecticut order shall remain in effect." C.M. v. Z.N., 2024 NY Slip Op 04427, CV-23-1269 (N.Y. App. Div. Sep 12, 2024)
Which court heard In re Matter of C.M. v. Z.N.?
This case was heard in Supreme Court, Tioga County, New York, NY. The presiding judge was Clark.
Who were the attorneys in In re Matter of C.M. v. Z.N.?
Plaintiff's attorney: Click Here For The Best Owego Family Law Lawyer Directory. Defendant's attorney: Click Here For The Best Owego Family Law Lawyer Directory.
When was In re Matter of C.M. v. Z.N. decided?
This case was decided on September 12, 2024.