IN THE MATTER OF WHITLEY v. LEONARD

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Docket Number

94278.

Attorney(S)

Hertzberg Law Office, Ithaca (Martha N. Hertzberg of counsel), for appellant. Leonard Whitney, Cortland (Stacy L. Whitney of counsel), for respondent. Kelly M. Corbett, Law Guardian, Ithaca.

Judges

Robert S. Rose
John A. Lahtinen

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Smart Summary

Factual and Procedural Background

Petitioner Sheri L. Whitley (mother) and respondent Jon H. Leonard (father) are the parents of a son born in 1990. They initially stipulated to a Family Court order granting joint legal custody, with the mother having physical custody and the father having regular visitation, including alternate weekends. The mother petitioned alleging the father violated visitation provisions. In response, the father filed a petition alleging the mother violated the order and sought sole custody, obtaining temporary sole custody. After a full hearing, the Family Court found that the mother had intentionally alienated the child from the father and awarded sole custody to the father with regular visitation rights for the mother. The mother appealed the order.

Legal Issues Presented

Whether the Family Court's finding that a change in custody was necessary due to the parties' inability to communicate regarding the child's welfare was supported by the record.
Whether the Family Court's conclusion that the mother intentionally alienated the child from the father was supported by the record.
Whether the Law Guardian breached her duty by advocating a custody arrangement contrary to the child's expressed wishes.
Whether the mother received ineffective assistance of counsel during the custody proceedings.

Arguments of the Parties

Appellant's Arguments

The mother argued that many of the Family Court's findings, including the conclusion of intentional alienation, lacked record support.
She contended that the Law Guardian breached her duty by advocating a custody disposition contrary to the child's wishes.
The mother claimed she received ineffective assistance of counsel during the custody proceedings.

Respondent's Arguments

This information was not available in the provided opinion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Matter of Murray v. McLean, 304 A.D.2d 899, 900	Supports finding that a change in custody is warranted due to inability of parents to communicate regarding child's welfare.	The court relied on this precedent to affirm the necessity of changing custody arrangements due to parental communication failures.
Matter of Harper v. Jones, 292 A.D.2d 649, 650	Similar principle regarding change of custody due to parental communication issues.	Used alongside Murray to uphold the Family Court's finding of necessity for custody modification.
Matter of Carballeira v. Shumway, 273 A.D.2d 753, 755; lv denied 95 N.Y.2d 764	Affirms Law Guardian's duty to represent both child's wishes and best interests.	Supported the court's conclusion that the Law Guardian properly balanced child's wishes and best interests in advocating for custody change.
Matter of Thompson v. Jones, 253 A.D.2d 989, 990	Standard for demonstrating actual prejudice in ineffective assistance of counsel claims.	The court found no actual prejudice to the mother, relying on this precedent to reject ineffective assistance claim.
Matter of Dingman v. Purdy, 221 A.D.2d 817, 818	Further supports standards for ineffective assistance of counsel claims.	Reinforced the court's conclusion that counsel was effective and no prejudice occurred.
Matter of Thompson v. Gibeault, 305 A.D.2d 873, 875	Addresses what constitutes meaningful and competent legal representation in custody proceedings.	Used to affirm that the mother's counsel provided competent representation.
Matter of Grenier v. Allen, 296 A.D.2d 619, 620; lv denied 98 N.Y.2d 615	Further authority on effective counsel standards in family court custody cases.	Supported the court's finding that counsel's performance was adequate.

Court's Reasoning and Analysis

The Family Court's decision to modify custody was primarily based on findings supported by the mother's own admissions and witness testimony. The evidence showed a pattern of behavior by the mother that alienated the child from the father, including encouraging the child to negotiate visitation directly, denying visitation during her absence, failing to communicate about the child's school problems, discussing court proceedings with the child, and promising the child a return to her custody. The court credited testimony supporting intentional alienation and appropriately discounted the child's expressed preferences, opting for a custody arrangement aimed at repairing the father-child relationship while maintaining regular contact with the mother.

Regarding the Law Guardian's role, the court noted the statutory duty to represent both the child's wishes and best interests. The Law Guardian properly communicated the child's desire to live with the mother but advocated for custody change based on the child's best interests, a position the court found reasonable and supported by the hearing, including the child's testimony at the Lincoln hearing.

On the ineffective assistance claim, the court found no actual prejudice since the custody decision was largely based on the mother's own testimony. It held that the mother's counsel provided meaningful and competent representation through witness examination, objections, and proposed findings, consistent with relevant precedents.

Holding and Implications

The order of the Family Court modifying custody to grant sole custody to the father and regular visitation to the mother is affirmed, without costs.

The decision directly affects the parties by upholding the custody modification based on findings of parental alienation and communication failures. No new legal precedent was established; the court applied settled principles to the facts presented.

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IN THE MATTER OF SHERI L. WHITLEY, Appellant, v. JON H. LEONARD, Respondent. (AND TWO OTHER RELATED PROCEEDINGS.).

MEMORANDUM AND ORDER

ROSE, J.

Petitioner and respondent are the mother and father, respectively, of a son born in 1990. After they stipulated to a Family Court order granting joint legal custody with the mother having physical custody of the child and the father having regular visitation, including alternate weekends, the mother petitioned Family Court alleging that the father had violated the order's visitation provisions. The father then filed a petition alleging that the mother had violated the order and seeking sole custody. He then received temporary sole custody of the child. After a full hearing and based on a finding that the mother had intentionally alienated the child from the father, Family Court granted his petition, awarding him sole custody of the child and regular visitation to the mother. The mother appeals.

Although the mother does not challenge Family Court's finding that a change in the earlier joint custody arrangement is necessary because of the parties' inability to meaningfully communicate regarding the child's welfare (see e.g. Matter of Murray v. McLean, 304 A.D.2d 899, 900; Matter of Harper v. Jones, 292 A.D.2d 649, 650), she does argue that many of the court's other findings, including its conclusion that she alienated the child from the father, have no record support. Upon our review of the record, however, we find that Family Court's decision has a sound and substantial basis and should not be disturbed.

Family Court primarily based its determination to change custody upon findings of fact supported by the mother's own admissions and the testimony of other witnesses. This evidence showed that, among other things, the mother encouraged the child to negotiate changes in visitation directly with the father, denied him an opportunity for visitation while she was away on vacation, failed to communicate with him concerning the child's problems at school, discussed court proceedings with the child and promised the child that he would be returned to her custody. While the mother offered explanations for, or conflicting versions of, these occurrences, the testimony that Family Court chose to credit supports its findings on the difficult issue of whether the child's alienation from the father was the result of the mother's intentional acts. Finding a pattern of parental alienation, Family Court appropriately discounted the child's expressed preferences and directed a new custody arrangement that would repair and enhance the child's relationship with his father while continuing regular contact with his mother.

Further, we are not persuaded by the mother's contention that the Law Guardian breached her duty to the child by advocating a custody disposition contrary to the child's wishes. It is well settled that a "Law Guardian has [a] statutorily directed responsibility to represent [a] child's wishes as well as to advocate the child's best interest" (Matter of Carballeira v. Shumway, 273 A.D.2d 753, 755, lv denied 95 N.Y.2d 764; see Family Ct Act § 241). Contrary to the mother's claim, the Law Guardian properly communicated to Family Court the child's desire to live with the mother and conscientiously explained why she was nonetheless advocating a change in custody. The court also had the opportunity to speak with the child at theLincoln hearing.

Finally, we reject the mother's argument that she received ineffective assistance of counsel. Since Family Court's custody award was based largely on the mother's own testimony, she has not demonstrated any actual prejudice as a result of the claimed deficiencies (see Matter of Thompson v. Jones, 253 A.D.2d 989, 990; Matter of Dingman v. Purdy, 221 A.D.2d 817, 818). In any event, her counsel provided meaningful and competent representation through the calling of witnesses, vigorous cross-examination, appropriate objections and submission of proposed findings of fact following the hearing (see Matter of Thompson v. Gibeault, 305 A.D.2d 873, 875; Matter of Grenier v. Allen, 296 A.D.2d 619, 620, lv denied 98 N.Y.2d 615).

Cardona, P.J., Crew III, Carpinello and Lahtinen, JJ., concur.

ORDERED that the order is affirmed, without costs.