Bennett v. Schultz, N.Y. App. Div., Judgment, Law, casemine.com

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Docket Number

Attorney(S)

Sarisohn Law Partners, LLP, Commack, N.Y. (Floyd Sarisohn and Marvin Waxner of counsel), for appellant. Joseph D. Mirabella, Mastic, N.Y., for respondent.

Judges

Peter B. Skelos

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Smart Summary

Factual and Procedural Background

This is a child custody proceeding pursuant to Family Court Act article 6. The father petitioned to modify a prior Family Court order dated August 3, 2009, to award him sole legal and physical custody of the subject child. After a hearing, the Family Court, Suffolk County, issued an order dated December 18, 2012, granting the father's petition. The mother appealed, as limited by her brief, from so much of that order as granted sole legal and physical custody to the father.

Legal Issues Presented

Whether there has been a change in circumstances sufficient to justify modification of the existing custody arrangement.
Whether transferring sole legal and physical custody to the father is in the child's best interests.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Matter of Sidorowicz v. Sidorowicz, 101 A.D.3d 737, 738, 955 N.Y.S.2d 194	Cited for the proposition that modification of an existing custody arrangement is permissible only upon a showing of a change in circumstances such that modification is necessary to ensure the best interests of the child.	Used as part of the standard governing modification; the court applied this standard and concluded the required change in circumstances existed and that modification was in the child's best interests.
Matter of Englese v. Strauss, 83 A.D.3d 705, 706, 920 N.Y.S.2d 365	Also cited for the standard that modification requires a showing of changed circumstances necessary for the child's best interests.	Included among authorities establishing the modification standard relied upon by the court.
Matter of Said v. Said, 61 A.D.3d 879, 880, 878 N.Y.S.2d 384	Also cited for the modification/change-in-circumstances standard.	Referenced as supporting authority for the modification standard the court applied.
Entwistle v. Entwistle, 61 A.D.2d 380, 384–385, 402 N.Y.S.2d 213	Cited for the proposition that parental alienation, including willful interference with visitation, is an act so inconsistent with the child's best interests that it raises a strong probability the offending party is unfit as custodial parent.	Referenced by the court as the governing statement of law concerning parental alienation and its significance in custody determinations.
Matter of Lawlor v. Eder, 106 A.D.3d 739, 740, 966 N.Y.S.2d 92	Cited alongside Entwistle and others concerning parental alienation and as authority on modification/best-interests issues.	Used as supporting authority in the court's discussion of parental alienation and the modification inquiry.
Matter of Doroski v. Ashton, 99 A.D.3d 902, 903, 952 N.Y.S.2d 259	Cited both for the parental-alienation context and for the principle that custody determinations turn in large part on credibility and should not be disturbed absent a lack of sound and substantial basis.	Relied upon for the deference owed to Family Court credibility assessments and incorporated into the court's conclusion that the Family Court's determinations have a sound and substantial basis.
Matter of Ahmad v. Naviwala, 306 A.D.2d 588, 591, 762 N.Y.S.2d 125	Cited in the context of parental alienation as authority for the proposition that such conduct is inconsistent with the child's best interests.	Referenced by the court as part of the body of law on parental alienation.
Eschbach v. Eschbach, 56 N.Y.2d 167, 173–174, 451 N.Y.S.2d 658, 436 N.E.2d 1260	Cited for the principle that custody determinations depend heavily on assessments of credibility, character, temperament, and sincerity of the parties, and thus should not be disturbed unless lacking a sound and substantial basis in the record.	Applied to justify deference to the Family Court's factual findings and to support affirming the Family Court's modification and custody award as having a sound and substantial basis.
Matter of Martinez v. Hyatt, 86 A.D.3d 571, 572, 927 N.Y.S.2d 375	Cited (cf.) in relation to the court's discussion of the modification and best-interests analysis.	Used by way of comparison (cf.) and not as primary authority for the court's conclusion.

Court's Reasoning and Analysis

The court articulated the applicable legal standard: modification of custody requires proof of a change in circumstances such that modification is necessary to protect the child's best interests. It noted that parental alienation and willful interference with visitation are legally significant because they are inconsistent with the child's best interests and may indicate custodial unfitness. The court emphasized that custody determinations rest heavily on assessments of credibility, character, temperament, and sincerity and therefore Court of Appeals and appellate authority require that such determinations not be disturbed unless they lack a sound and substantial basis in the record. Applying these principles, the court concluded that the Family Court's findings that a change in circumstances had occurred and that awarding sole legal and physical custody to the father was in the child's best interests were supported by a sound and substantial basis in the record; accordingly, the appellate court declined to disturb the Family Court's order.

Holding and Implications

AFFIRMED — The order dated December 18, 2012, of the Family Court, Suffolk County, is affirmed insofar as appealed from, with costs.

Implications: The direct effect is that the father's petition to modify the prior custody order was sustained and he was awarded sole legal and physical custody of the child; the mother's appeal as limited was unsuccessful. The opinion applies existing principles regarding modification, parental alienation, and deference to factfinders and does not announce a new legal rule.

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In the Matter of Eric Lee BENNETT, respondent, v. Casey Marie SCHULTZ, appellant.

PETER B. SKELOS

Sarisohn Law Partners, LLP, Commack, N.Y. (Floyd Sarisohn and Marvin Waxner of counsel), for appellant. Joseph D. Mirabella, Mastic, N.Y., for respondent.
Robert D. Gallo, Sayville, N.Y., attorney for the child.
PETER B. SKELOS, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Suffolk County (Burke, Ct. Atty. Ref.), dated December 18, 2012, as, after a hearing, granted the father's petition to modify a prior order of the same court dated August 3, 2009, so as to award him sole legal and physical custody of the subject child.

ORDERED that the order dated December 18, 2012, is affirmed insofar as appealed from, with costs.

Modification of an existing custody arrangement is permissible only upon a showing that there has been a change in circumstances such that modification is necessary to ensure the best interests of the child ( see Matter of Sidorowicz v. Sidorowicz, 101 A.D.3d 737, 738, 955 N.Y.S.2d 194;Matter of Englese v. Strauss, 83 A.D.3d 705, 706, 920 N.Y.S.2d 365;Matter of Said v. Said, 61 A.D.3d 879, 880, 878 N.Y.S.2d 384). Parental alienation of a child from the other parent, including willful interference with his or her visitation rights, is “an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the [offending party] is unfit to act as custodial parent” ( Entwistle v. Entwistle, 61 A.D.2d 380, 384–385, 402 N.Y.S.2d 213;see Matter of Lawlor v. Eder, 106 A.D.3d 739, 740, 966 N.Y.S.2d 92;Matter of Doroski v. Ashton, 99 A.D.3d 902, 903, 952 N.Y.S.2d 259;Matter of Ahmad v. Naviwala, 306 A.D.2d 588, 591, 762 N.Y.S.2d 125). As custody determinations turn in large part on assessments of the credibility, character, temperament, and sincerity of the parties, the Family Court's determination should not be disturbed unless it lacks a sound and substantial basis in the record ( see Eschbach v. Eschbach, 56 N.Y.2d 167, 173–174, 451 N.Y.S.2d 658, 436 N.E.2d 1260;Matter of Doroski v. Ashton, 99 A.D.3d at 903, 952 N.Y.S.2d 259). Here, the court's determinations that there had been a change in circumstances, and that a transfer of sole legal and physical custody to the father would be in the child's best interests, have a sound and substantial basis in the record and, thus, should not be disturbed ( see Eschbach v. Eschbach, 56 N.Y.2d at 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260;Matter of Lawlor v. Eder, 106 A.D.3d at 740, 966 N.Y.S.2d 92;Matter of Doroski v. Ashton, 99 A.D.3d at 903, 952 N.Y.S.2d 259;cf. Matter of Martinez v. Hyatt, 86 A.D.3d 571, 572, 927 N.Y.S.2d 375).

Bennett v. Schultz