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THE DETERIORATION OF THE RELATIONSHIP BETWEEN FATHER AND MOTHER WAS A SUFFICIENT CHANGE IN CIRCUMSTANCES TO WARRANT AN INQUIRY RE: FATHER’S PETITION FOR A MODIFICATION OF CUSTODY; AFTER CONSIDERING THE MERITS, THE APPELLATE COURT AWARDED SOLE CUSTODY TO FATHER (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined father demonstrated a change in circumstance (deterioration of the relationship with mother, inability to communicate) sufficient to warrant an inquiry into whether the joint custody arrangement should be modified, and the record supported awarding father sole custody:

… [T]he court had previously awarded joint custody to the parties on the basis that communications between them had “improved and the two were working together more than ever before, the results of which were positive for [the subject child].” However, the evidence at the hearing established that, after the initial custody award was entered, the parties reverted to ” ‘an acrimonious relationship and are not able to communicate effectively with respect to the needs and activities of their child[ ], and it is well settled that joint custody is not feasible under those circumstances’ ” … . …

… [W]e conclude that it is in the child’s best interests to award the father sole custody. Although the parties have shared alternating week custody since the entry of the prior custody order, the evidence at the hearing established that the father “provided a more stable environment for the child and was better able to nurture the child” … . The evidence further established that the mother made a concerted effort to interfere with the father’s contact with the child by, inter alia, disparaging him to educational and medical professionals, which raises a strong probability that the mother ” ‘is unfit to act as custodial parent’ ” … and warrants the grant of sole custody to the father…. . Matter of Johnson v Johnson, 2022 NY Slip Op 05651, Fourth Dept 10-7-22

Practice Point: A deterioration of the relationship between father and mother was a sufficient change in circumstances to warrant an inquiry re: father’s petition for a modification of custody. The record was sufficient for the appellate court to determined sole custody should be awarded to father.

 

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