IN RE: Andrew WATLING (2025)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the mother appeals from a corrected order of the Family Court, Suffolk County (Catherine E. Miller, Ct. Atty. Ref.), dated January 26, 2024.  The corrected order, insofar as appealed from, after a hearing, granted the father's petition to modify the custody provisions of the parties' judgment of divorce dated September 15, 2020, which incorporated but did not merge a stipulation of settlement dated January 20, 2020, so as to award him sole legal and residential custody of the parties' child, with parental access to the mother.

ORDERED that the corrected order is affirmed insofar as appealed from, without costs or disbursements.

The parties, who are the parents of one child, were divorced by a judgment dated September 15, 2020.  Pursuant to a stipulation of settlement dated January 20, 2020, which was incorporated but not merged into the judgment of divorce, the parties agreed, inter alia, to joint legal custody of the child, with primary residential custody to the mother, subject to the father's parental access.  In November 2021, the father filed a petition to modify the custody and parental access provisions of the judgment of divorce so as to award him sole legal and residential custody of the child, with parental access to the mother.  In a corrected order dated January 26, 2024, the Family Court, among other things, after a hearing, granted the father's petition.  The mother appeals.

“In order to modify an existing custody arrangement, there must be a showing of a subsequent change in circumstances such that modification is required to protect the best interests of the child” (Matter of Jones v. Jones, 231 A.D.3d 829, 830, 219 N.Y.S.3d 705 [internal quotation marks omitted];  see Matter of Newton v. McFarlane, 174 A.D.3d 67, 76–77, 103 N.Y.S.3d 445).  “The paramount concern when making such a determination is the best interests of the child under the totality of the circumstances” (Matter of Martinez v. Gaddy, 223 A.D.3d 816, 817, 204 N.Y.S.3d 163 [internal quotation marks omitted]).  “When deciding whether a modification is in a child's best interests, factors to be considered include 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 effect an award of custody to one parent might have on the child's relationship with the other parent” (Matter of Narine v. Singh, 229 A.D.3d 700, 701, 216 N.Y.S.3d 38 [internal quotation marks omitted]).  “Stability and continuity in a child's life are [also] important factors, as are the child's wishes, which become more important as a child ages and matures” (Matter of Luke v. Erskine, 222 A.D.3d 868, 870, 199 N.Y.S.3d 707 [citation and internal quotation marks omitted]).  “However, the existence or absence of any one factor ․ cannot be determinative[,] ․ since the court is to consider the totality of the circumstances” (Matter of Nathaniel v. Mauvais, 234 A.D.3d 766, 768, 225 N.Y.S.3d 332 [internal quotation marks omitted]).  “Since the Family Court's determination with respect to custody and [parental access] depends to a great extent upon its assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parties, deference is accorded to its findings in this regard, and such findings will not be disturbed unless they lack a sound and substantial basis in the record” (Matter of Graffagnino v. Esposito, 223 A.D.3d 805, 807, 204 N.Y.S.3d 172 [internal quotation marks omitted]).

Initially, the mother correctly contends that the Family Court improperly admitted certain letters and an email from the child's school principal and a report from a child protective services caseworker into evidence at the hearing, since those materials contained inadmissible hearsay (see Matter of MacKay v. Bencal, 230 A.D.3d 691, 694, 218 N.Y.S.3d 78;  Matter of Wedra v. Greco, 219 A.D.3d 753, 754, 195 N.Y.S.3d 224).  However, these evidentiary errors were harmless, as there was a sound and substantial basis in the record for the court's determination without consideration of the materials in question (see Matter of MacKay v. Bencal, 230 A.D.3d at 694, 218 N.Y.S.3d 78;  Matter of Aaron W. v. Shannon W., 96 A.D.3d 960, 961, 946 N.Y.S.2d 648).

Contrary to the mother's contention, the Family Court's determination that a change in circumstances existed to warrant modification of the custody provisions of the judgment of divorce has a sound and substantial basis in the record and will not be disturbed (see Matter of Barge v. Blackman, 195 A.D.3d 926, 927, 146 N.Y.S.3d 494).  Considering the evidence of “the deterioration of the parties' relationship” (Matter of Luke v. Erskine, 222 A.D.3d at 871, 199 N.Y.S.3d 707 ;  see Matter of Cornielle v. Rosado, 231 A.D.3d 824, 826, 220 N.Y.S.3d 763) and “the deterioration of the relationship between the mother and the ․ child” (Matter of Rossi v. O'Leary, 231 A.D.3d 835, 836, 220 N.Y.S.3d 132;  see Matter of Georgiou–Ely v. Ely, 181 A.D.3d 885, 885, 122 N.Y.S.3d 333), the record established “a sufficient change in circumstances [to] warrant[ ] an inquiry into whether modification was necessary to ensure the best interests of the child” (Matter of Mazo v. Volpert, 223 A.D.3d 907, 909, 205 N.Y.S.3d 97).

Moreover, there is a sound and substantial basis in the record for the Family Court's determination to award sole legal and residential custody of the child to the father (see Matter of Martinez v. Gaddy, 223 A.D.3d at 818, 204 N.Y.S.3d 163).  “[T]he evidence indicated that the father was better suited to provide for the child's overall well-being” (Matter of Nathaniel v. Mauvais, 234 A.D.3d at 769, 225 N.Y.S.3d 332 [alteration and internal quotation marks omitted]), particularly in light of the behavioral issues the mother exhibited toward the child and in matters relating to the child (see Matter of Chung v. Toppin, 209 A.D.3d 647, 649, 174 N.Y.S.3d 868).  The record also demonstrated that the child had formed relationships with her half-sibling and stepsibling, who reside with the father and the child's stepmother (see Matter of Fiore v. Gima, 227 A.D.3d 1071, 1074, 213 N.Y.S.3d 109;  Matter of Brown v. Brown, 97 A.D.3d 568, 570–571, 947 N.Y.S.2d 179).  Finally, the court placed appropriate “weight on the child's wishes due to h[er] age and maturity” (Matter of Mazo v. Volpert, 223 A.D.3d at 909, 205 N.Y.S.3d 97;  see Matter of Georgiou–Ely v. Ely, 181 A.D.3d at 886, 122 N.Y.S.3d 333).

The parties' remaining contentions are either improperly raised for the first time on appeal, without merit, or based on matters dehors the record.

BARROS, J.P., BRATHWAITE NELSON, TAYLOR and VENTURA, JJ., concur.