The Third Department, reversing Family Court, determined the judge should not have, sua sponte, found there had been a change in circumstances, i.e., a breakdown in communication between mother and father, justifying awarding sole custody to mother. The evidence did not support the finding that communication had broken down:
… Family Court erred in determining that the parties being unwilling or unable to cooperatively raise the child constituted a change in circumstances and sua sponte modifying the prior order. … Initially, the parties did provide some evidence as to how each has failed to properly communicate with respect to the child, such as the father being unresponsive to the mother’s messages regarding child support payments and the mother failing to inform him that she had unenrolled the child from daycare. However, the mother acknowledged that the father has been able to communicate with her via the TalkingParents app to discuss issues regarding the child, such as custodial exchange dates. The father similarly stated that he has been able to communicate with the mother via email. Thus, although their communication is strained at times, partially as a result of these proceedings, the record does not establish that it has completely broken down … . Indeed, “[t]he record establishes that the parties’ relationship was no more antagonistic during [the relevant time] period than it was at the time of the entry of the original order” … , which, in this case, was only two months prior to the filing of the father’s petition. Accordingly, Family Court should not have proceeded to a best interest analysis and, instead, should have continued the joint legal custody arrangement reflected in the prior order … .Matter of Karl II. v Maurica JJ., 2022 NY Slip Op 05905, Third Dept 10-20-22
Practice Point: Here the evidence did not support the Family Court judge’s sua sponte finding that communication between mother and father had broken down warranting a modification of the custody arrangement.