Opinion
CAF 03-00469.
November 21, 2003.
Appeal from an amended order of Family Court, Oneida County (Flemma, J.H.O.), entered April 25, 2002, which dismissed the petition seeking to transfer primary physical custody.
Kernan Kernan, P.C., Utica (James W. Hyde, IV, of Counsel), for Petitioner-Appellant.
Cohen Cohen LLP, Utica (Richard A. Cohen of Counsel), for Respondent-Respondent.
John G. Koslosky, Law Guardian, Utica, for Nicholas K.M. and Jonathan D.M.
Before: Present: Pine, J.P., Hurlbutt, Kehoe, Lawton, and Hayes, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the amended order so appealed from be and the same hereby is unanimously modified on the law by denying respondent's motion and denying the petition on the merits insofar as it sought a change in primary physical custody of the two youngest children and as modified the amended order is affirmed without costs.
Memorandum: Petitioner commenced this proceeding seeking to transfer primary physical custody of three of the parties' four children to petitioner. Primary physical custody of the eldest child had already been transferred to petitioner upon respondent's consent. Following the filing of the petition, respondent consented to a transfer of primary physical custody of the second eldest child. A hearing was held concerning the parties' two youngest sons.
Family Court erred in granting respondent's motion to dismiss the petition made at the close of petitioner's case and renewed at the end of the hearing. We conclude that petitioner met his burden of demonstrating a sufficient change in circumstances to require consideration of the welfare of the children ( cf. Matter of Gademsky v. Masset, 213 A.D.2d 1011, 1011-1012; Matter of Boedecker-Frey v. Boedecker-Frey, 176 A.D.2d 392, 393). Following the parties' divorce, respondent moved with the children from a suburban school district to the City of Utica. Thereafter, the two eldest children were permitted to live with petitioner and remain in their original school district. Although the relocation did not deprive petitioner of meaningful access to the younger children, when combined with the separation of the siblings, it did constitute "a change of circumstances warranting a reexamination of the existing custody arrangement" ( Matter of Muniz v. Paradizo, 258 A.D.2d 970; see Matter of Dacey v. Dacey, 214 A.D.2d 790, 791-792; Matter of Giovannone v. Giovannone, 206 A.D.2d 869, lv denied 84 N.Y.2d 805).
While the court erred in determining that petitioner did not meet his initial burden on the petition, because the court proceeded with a full hearing, we have an adequate record and may make the custody determination "in the interest of judicial economy and to avoid further delay" ( Matter of Guzzey v. Titus, 220 A.D.2d 976, 976, lv denied 87 N.Y.2d 807; see e.g. Matter of Hilliard v. Peroni, 245 A.D.2d 1107; Matter of Michael G.B. v. Angela L.B., 219 A.D.2d 289, 292).
"A change of custody should be made only if the totality of the circumstances warrants a change that is in the best interests of the child" ( Matter of Salvati v. Salvati, 221 A.D.2d 541, 542; see Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 96; Matter of Ammann v. Ammann, 209 A.D.2d 1032, 1033; Matter of Sullivan v. Sullivan, 190 A.D.2d 852, lv denied 81 N.Y.2d 706). "Among the factors to be considered are the quality of the home environment and the parental guidance the custodial parent provides for the child * * *, the ability of each parent to provide for the child's emotional and intellectual development * * *, the financial status and ability of each parent to provide for the child * * *, the relative fitness of the respective parents, and the length of time the present custody arrangement has been in effect" ( Matter of Krebsbach v. Gallagher, 181 A.D.2d 363, 364, lv denied 81 N.Y.2d 701; see Eschbach v. Eschbach, 56 N.Y.2d 167; Friederwitzer, 55 N.Y.2d at 94). Priority, in the first instance, will be accorded an existing custodial arrangement, but the weight to be accorded a prior custodial arrangement depends on whether the prior disposition resulted from a full hearing or a stipulation ( see Friederwitzer, 55 N.Y.2d at 94-95; see also Eschbach, 56 N.Y.2d at 172). It is also important to note that "[c]ourts should be reluctant to separate siblings" ( Salerno v. Salerno, 273 A.D.2d 818, 819; see Eschbach, 56 N.Y.2d at 173). However, "the existence or absence of any one factor cannot be determinative on appellate review since the court is to consider the totality of the circumstances" ( Eschbach, 56 N.Y.2d at 174). Finally, courts are "not required to adopt the recommendation of a Law Guardian" ( Salerno, 273 A.D.2d at 819; Matter of Groth v. Groth, 239 A.D.2d 953)
Based on our review of the record, we conclude that a change of primary physical custody is not required in the best interests of the two youngest children. Although the separation of siblings is unfortunate, the younger children will benefit more from the stability and structure of respondent's home, where each child has his own room. Further, the children are now attending a magnet school and doing well. The children have lived with respondent since birth and the change in schools and residence of the two older siblings does not require a change of primary physical custody in the best interests of the youngest children.
We therefore modify the amended order by denying respondent's motion and denying the petition on the merits insofar as it sought a change in primary physical custody of the two youngest children. We otherwise affirm.