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Defendant’s Failure to Comply with Stipulated Custody Arrangement Warranted Awarding Sole Custody to Plaintiff

The Second Department determined Supreme Court had correctly found a change in circumstances justifying a change in the custody arrangement (sole custody awarded to the plaintiff). Despite the stipulation allowing liberal visitation by the plaintiff, the defendant did not comply with the agreement:

“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 [*2]of the stipulation and unless the modification of the custody agreement is in the best interests of the children'” … . In determining the child’s best interests, the court must look to the totality of the circumstances … . “As custody determinations turn in large part on assessments of the credibility, character, temperament, and sincerity of the parties, the [c]ourt’s determination should not be disturbed unless it lacks a sound and substantial basis in the record” … .In this case, the critical issue facing the Supreme Court was the parties’ relative abilities to foster a relationship with the noncustodial parent and to cooperate in coordinating long-distance visitation. As we have stated, “one of the primary responsibilities of a custodial parent is to assure meaningful contact between the children and the noncustodial parent, and the willingness of a parent to assure such meaningful contact between the children and the other parent is a factor to be considered in making a custody determination” … . In contrast, “[w]illful interference with a noncustodial parent’s right to visitation is 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 a custodial parent” … . Alvarez v Alcarez, 2014 NY Slip Op 01286, 2nd Dept 2-26-14

 

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