Summary of Opinion: ANONYMOUS 2011–1 v. ANONYMOUS 2011–2

Factual and Procedural Background

The parties, who have two children (a daughter born March 21, 1999, and a son born September 8, 2003), entered into a separation agreement dated April 2, 2010, which provided for shared legal and residential custody on alternating weeks and designated the children's therapist as a neutral mediator for parenting disputes. That agreement was incorporated, but not merged, into the judgment of divorce dated September 1, 2011. On October 19, 2011, the plaintiff (the mother) moved, among other relief, to modify the joint custody provisions of the judgment so as to award her sole custody of the children. In support, the mother submitted an affidavit alleging a change in circumstances, including repeated violations of the agreement by the father and the father's hiring of the children's therapist as a full-time employee. The Supreme Court, Nassau County, denied, without a hearing, the mother's request to modify custody, finding she had not alleged a change of circumstances warranting the relief. The mother appealed. The Appellate Division reversed insofar as appealed and remitted the matter for appointment of an attorney for the children and for a hearing and new determination of the custody-modification branch of the motion.

Legal Issues Presented

Whether the mother made an evidentiary showing of a sufficient change in circumstances to entitle her to a hearing on her motion to modify joint custody and award her sole custody.
Whether, given the facts of the case, the interests of the children warrant the appointment of an attorney to represent their interests in the custody dispute.

Arguments of the Parties

Appellant's (Mother's) Arguments

The mother asserted a change in circumstances since the separation agreement and divorce judgment that warranted modification of the shared custody arrangement.
She alleged that the father repeatedly violated the custody provisions of the agreement.
She alleged that, after the agreement, the father hired the children's therapist (the person designated in the agreement to act as neutral mediator/arbitrator) as a full-time employee, a fact she contended undermined the integrity of the agreement's custodial provisions.
The record reflected a continued deterioration in the parties' relationship, which the mother alleged could further justify changing the custodial arrangement.

The opinion does not contain a detailed account of the respondent's (father's) legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kresnicka v. Kresnicka, 48 A.D.2d 929, 369 N.Y.S.2d 522	"An order ... modifying custody[ ] must be addressed solely to the infant's best interests."	Used to state the governing principle that custody modifications must focus on the children's best interests.
Matter of Sullivan v. Moore, 95 A.D.3d 1223, 944 N.Y.S.2d 641	Support for the principle that custody modifications are governed by the children's best interests.	Cited as authority supporting the best-interests standard for custody modifications.
Matter of Leichter–Kessler v. Kessler, 71 A.D.3d 1148, 897 N.Y.S.2d 639	Support for the principle that custody modifications are governed by the children's best interests.	Cited as supporting authority for the best-interests standard.
Hizme v. Hizme, 212 A.D.2d 580, 622 N.Y.S.2d 737	Support for the principle that custody modifications are governed by the children's best interests.	Cited as supporting authority for the best-interests standard.
Matter of Gaudette v. Gaudette, 262 A.D.2d 804, 691 N.Y.S.2d 681	Where parents enter into an agreement concerning custody, it will not be set aside unless there is a sufficient change in circumstances since the stipulation and the modification is in the children's best interests.	Applied as the standard for when a custodial agreement may be modified or set aside.
Matter of Joseph F. v. Patricia F., 32 A.D.3d 938, 821 N.Y.S.2d 625	Support for the rule that a custodial agreement is not set aside absent sufficient change in circumstances and best-interests showing.	Cited as corroborative authority for the standard governing modification of agreements.
Smoczkiewicz v. Smoczkiewicz, 2 A.D.3d 705, 770 N.Y.S.2d 101	Support for the rule that a custodial agreement is not set aside absent sufficient change in circumstances and best-interests showing.	Cited as corroborative authority for the modification standard.
Kollmar v. Kollmar, 100 A.D.3d 712, 953 N.Y.S.2d 876	Support for the rule that a custodial agreement is not set aside absent sufficient change in circumstances and best-interests showing.	Cited as additional authority for the applicable standard.
Matter of Chery v. Richardson, 88 A.D.3d 788, 930 N.Y.S.2d 663	Court "must consider the totality of the circumstances" in custody determinations.	Used to emphasize that the court must evaluate all circumstances when deciding custody modifications.
Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260	Support for considering the totality of the circumstances in custody cases.	Cited as foundational authority for evaluating the totality of circumstances.
Matter of Solovay v. Solovay, 94 A.D.3d 898, 941 N.Y.S.2d 712	Support for considering the totality of the circumstances in custody determinations.	Cited as supporting authority for the totality-of-circumstances approach.
Matter of Nava v. Kinsler, 85 A.D.3d 1186, 926 N.Y.S.2d 310	A party seeking a change in custody is entitled to a hearing where the movant has made an evidentiary showing of a sufficient change in circumstances demonstrating a real need for change to insure the children's best interests.	Applied to determine that the mother had made the necessary evidentiary showing entitling her to a hearing.
Sirabella v. Sirabella, 95 A.D.3d 1296, 944 N.Y.S.2d 896	Support for the rule that an evidentiary showing of sufficient change entitles the movant to a hearing.	Cited as corroborative authority for the hearing entitlement standard.
Matter of Dorsa v. Dorsa, 90 A.D.3d 1046, 935 N.Y.S.2d 343	Support for the rule that an evidentiary showing of sufficient change entitles the movant to a hearing.	Cited as additional authority supporting entitlement to a hearing upon sufficient showing.
McNally v. McNally, 28 A.D.3d 526, 816 N.Y.S.2d 98	Referenced by comparison concerning allegations of repeated violations of custody provisions.	Used by the court as a comparative reference in assessing the mother's allegations regarding the father's repeated violations.
Matter of Nikki O. v. William N., 64 A.D.3d 938, 884 N.Y.S.2d 783	Continued deterioration in the parties' relationship may qualify as a circumstance warranting a change in the custodial arrangement.	Relied upon to note that recorded deterioration in the parties' relationship may further justify a change in custody.
Koppenhoefer v. Koppenhoefer, 159 A.D.2d 113, 558 N.Y.S.2d 596	In disputed custody/visitation litigation, appointment of an attorney for the child has been recognized as appropriate and helpful to the court.	Cited to support the appointment of an attorney to represent the interests of the children in this contested custody matter.
William–Torand v. Torand, 73 A.D.3d 605, 901 N.Y.S.2d 601	Support for the appropriateness and helpfulness of appointing an attorney for the child in contested custody matters.	Cited as corroborative authority for appointing counsel for the children.
Matter of Plovnick v. Klinger, 10 A.D.3d 84, 781 N.Y.S.2d 360	Support for the appropriateness of appointing an attorney for the child in disputed custody/visitation litigation.	Cited to support the court's determination to appoint an attorney to represent the children's interests.

Court's Reasoning and Analysis

The Appellate Division evaluated whether the mother had made the necessary evidentiary showing to warrant a hearing on her motion to modify the custody provision of the divorce judgment. The court applied established principles: custody modifications must be resolved based on the children's best interests; agreements between parents are not set aside absent a sufficient change in circumstances and a best-interests finding; courts must consider the totality of the circumstances; and a movant who shows an evidentiary basis of sufficient change is entitled to a hearing.

The court found that the mother's affidavit contained specific allegations that the father had repeatedly violated the custody provisions of the agreement. It further found that the father's full-time employment of the children's therapist (the neutral third-party "arbitrator" designated in the agreement) constituted a significant change in circumstances that could undermine the integrity of the agreement's custodial provisions. The record also showed a continued deterioration in the parties' relationship, which could further support a modification. Under the totality of the circumstances, the court concluded the mother had made the necessary showing entitling her to a hearing on the custody-modification branch of her motion.

Given the particular facts (including the therapist's changed role and the contested nature of custody), the court concluded that the children's interests should be independently represented and relied on authority recognizing the appropriateness of appointing an attorney for the child in disputed custody litigation.

Holding and Implications

Core Ruling: The order of the Supreme Court, Nassau County, dated February 15, 2012, was reversed insofar as appealed from, and the matter was remitted for appointment of an attorney to represent the interests of the children and thereafter for a hearing and new determination of the mother's motion to modify joint custody so as to award her sole custody of the children.

Implications and immediate effects:

The mother is entitled to a hearing on her motion to modify custody based on the evidentiary showing alleged in her affidavit.
An attorney will be appointed to represent the interests of the children in the proceedings on remand.
The Supreme Court is to conduct a new determination of the custody-modification branch of the mother's motion following appointment of counsel for the children.

The opinion does not announce any broader change in law; it remands for further proceedings consistent with the described findings and established legal principles.

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ANONYMOUS 2011–1, appellant, v. ANONYMOUS 2011–2, respondent.

DANIEL D. ANGIOLILLO

Greenfield Labby, LLP, New York, N.Y. (Casey Greenfield of counsel), for appellant. Albanese & Albanese, LLP, Garden City, N.Y. (Barry A. Oster of counsel), for respondent.
DANIEL D. ANGIOLILLO, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

In a matrimonial action in which the parties were divorced by judgment dated September 1, 2011, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Schwartz–Zimmerman, J.), dated February 15, 2012, as, without a hearing, denied that branch of her motion which was to modify the joint custody provisions of the parties' judgment of divorce so as to award her sole custody of the parties' children.

ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for the appointment of an attorney to represent the interests of the children, and thereafter for a hearing and a new determination of that branch of the plaintiff's motion which was to modify the joint custody provisions of the parties' judgment of divorce so as to award her sole custody of the parties' children.

The parties have two children, a daughter, born March 21, 1999, and a son, born September 8, 2003. The parties entered into a separation agreement on April 2, 2010, pursuant to which they agreed to share legal and residential custody of the children on alternating weeks. They also agreed, inter alia, that the children's therapist would act as a neutral mediator to help them resolve any parenting disputes. The separation agreement (hereinafter the agreement) was incorporated but not merged into the parties' judgment of divorce dated September 1, 2011.

On October 19, 2011, the plaintiff (hereinafter the mother) moved, inter alia, to modify the joint custody provisions of the judgment of divorce so as to award her sole custody of the children. In support of her motion, the mother submitted an affidavit wherein she asserted, inter alia, that a change in circumstances warranted a modification of the shared custody arrangement. The mother claimed that the defendant (hereinafter the father) had repeatedly violated conditions of the agreement. The mother further alleged that, after the execution of the agreement, the father had hired the children's therapist as a full-time employee to perform virtually all of his parental duties. The Supreme Court denied, without a hearing, that branch of the mother's motion which was to modify the joint custody provisions of the judgment of divorce so as to award her sole custody of the children, finding that the mother had not alleged a change of circumstances “which would warrant the relief requested.”

“An order ... modifying custody[ ] must be addressed solely to the infant's best interests” ( Kresnicka v. Kresnicka, 48 A.D.2d 929, 929, 369 N.Y.S.2d 522;see Matter of Sullivan v. Moore, 95 A.D.3d 1223, 944 N.Y.S.2d 641;Matter of Leichter–Kessler v. Kessler, 71 A.D.3d 1148, 897 N.Y.S.2d 639;Hizme v. Hizme, 212 A.D.2d 580, 622 N.Y.S.2d 737). Where parents enter into an agreement concerning custody, “it will not be set aside unless there is a sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interests of the children” ( Matter of Gaudette v. Gaudette, 262 A.D.2d 804, 805, 691 N.Y.S.2d 681;see Matter of Joseph F. v. Patricia F., 32 A.D.3d 938, 939, 821 N.Y.S.2d 625;Smoczkiewicz v. Smoczkiewicz, 2 A.D.3d 705, 706, 770 N.Y.S.2d 101;see also Kollmar v. Kollmar, 100 A.D.3d 712, 953 N.Y.S.2d 876). When making such determinations, a court “must consider the totality of the circumstances” ( Matter of Chery v. Richardson, 88 A.D.3d 788, 788, 930 N.Y.S.2d 663 [internal quotation marks omitted]; see Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260;Matter of Solovay v. Solovay, 94 A.D.3d 898, 899, 941 N.Y.S.2d 712). A party seeking a change in custody is entitled to a hearing where the movant has made an evidentiary showing of “a sufficient change in circumstances demonstrating a real need for a change of custody in order to insure the [children's] best interests” ( Matter of Nava v. Kinsler, 85 A.D.3d 1186, 1186, 926 N.Y.S.2d 310;see Sirabella v. Sirabella, 95 A.D.3d 1296, 944 N.Y.S.2d 896;Matter of Dorsa v. Dorsa, 90 A.D.3d 1046, 1046, 935 N.Y.S.2d 343).

Here, the mother made the necessary showing entitling her to a hearing regarding that branch of her motion which was for a change of custody. The mother's affidavit contained specific allegations concerning the father's repeated violations of the custody provisions of the agreement since its inception ( cf. McNally v. McNally, 28 A.D.3d 526, 816 N.Y.S.2d 98). Moreover, the full-time employment of the children's therapist, the person designated in the agreement as a neutral third-party “arbitrator” of custodial disputes, by the father, constitutes a significant change of circumstance which could undermine the integrity of the agreement's custodial provisions. The record also reveals a “continued deterioration in the [parties'] relationship” which may qualify as a further circumstance warranting a change in the present custodial arrangement ( Matter of Nikki O. v. William N., 64 A.D.3d 938, 939, 884 N.Y.S.2d 783 [internal quotation marks omitted] ). Thus, under the totality of the circumstances, the mother is entitled to a hearing before the court determines that branch of her motion which was to modify the joint custody provisions of the judgment of divorce so as to award her sole custody of the children.

Given the particular facts of this case, the interests of the children should be independently represented. As stated by this Court in Koppenhoefer v. Koppenhoefer, 159 A.D.2d 113, 117, 558 N.Y.S.2d 596, “in disputed custody/visitation litigation, the appointment of [an attorney for the child] has been recognized as appropriate and helpful to the court. The attorney may act as champion of the child's best interest, as advocate for the child's preferences, as investigator seeking the truth on controverted issues, or may serve to recommend alternatives for the court's consideration” ( see William–Torand v. Torand, 73 A.D.3d 605, 901 N.Y.S.2d 601;see also Matter of Plovnick v. Klinger, 10 A.D.3d 84, 781 N.Y.S.2d 360).

Accordingly, the matter must be remitted to the Supreme Court, Nassau County, for the appointment of an attorney to represent the interests of the children, and thereafter for a hearing and a new determination of that branch of the mother's motion which was to modify the joint custody provisions of the judgment of divorce so as to award her sole custody of the children.

Anonymous 2011-1 v. Anonymous 2011-2