RHUBART v. RHUBART (2005)

 Petitioner-respondent Denis Rhubart (petitioner) and respondent-petitioner Barbara A. Rhubart (respondent) each filed a petition to modify a prior order of joint custody by seeking sole custody of their three children.  “The record supports Family Court's determination that the parties' acrimonious relationship and inability to communicate in a civil manner warranted a change from joint custody to sole custody ․ and that the best interests of the child [ren] will be served by awarding sole custody to [petitioner]” (Matter of Dube v. Dube, 259 A.D.2d 1041, 1041, 688 N.Y.S.2d 356).   We modify the order, however, by vacating the second ordering paragraph.   That paragraph provides that the custodial arrangement changes back to joint custody automatically if respondent completes counseling (see Matter of Carter v. Kratzenberg, 209 A.D.2d 990, 991, 619 N.Y.S.2d 456;  Rybicki v. Rybicki, 176 A.D.2d 867, 871, 575 N.Y.S.2d 341).  “No one factor is determinative of whether there should be a change in custody” (Carter, 209 A.D.2d at 991, 619 N.Y.S.2d 456).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by vacating the second ordering paragraph and as modified the order is affirmed without costs.

MEMORANDUM: