IN RE: DANIEL QQ. (2022)

MEMORANDUM AND ORDER

Appeals from two orders of the Family Court of Schuyler County (Miller, J.), entered November 9, 2020 and June 4, 2021, which, among other things, dismissed petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of two children (born in 2006).  Pursuant to a January 2018 order, the mother had sole legal and physical custody of the children.  The January 2018 order further provided, among other things, that the children would continue with counseling until successfully discharged and required that the parents follow through with any recommendations by the counselor.  In addition, the children and the father were to have joint counseling with the goal of resuming normal visitation between them.  In August 2019, the father filed a modification petition and an enforcement petition.  Fact-finding and Lincoln hearings ensued, during the course of which the mother, without objection, commenced a modification proceeding.  At the close of the father's proof, Family Court dismissed the enforcement petition.  Following the conclusion of the hearings, the court dismissed the father's modification petition and granted the mother's petition.  In so doing, the court, among other things, suspended joint counseling between the father and the children.  The father appeals.

A party seeking to modify a prior custody order bears the threshold burden of proving a change in circumstances since the entry thereof so as to trigger an analysis into the best interests of the children (see Matter of Jorge JJ. v. Erica II., 191 A.D.3d 1188, 1190, 142 N.Y.S.3d 240 [2021];  Matter of Ronald EE. v. Crystal F., 180 A.D.3d 1160, 1161, 120 N.Y.S.3d 472 [2020], lv denied 35 N.Y.3d 908, 2020 WL 3422419 [2020]).  Family Court found that a change in circumstances existed due to, among other things, the father's incarceration and the children's completion of therapy.  The testimony from the fact-finding hearing discloses that, following the entry of the January 2018 order, the father was incarcerated as a consequence of a conviction for driving while intoxicated.  The children's counselor testified that the children were successfully discharged from counseling and that they reached a point where they could self-advocate for their wishes.  Accordingly, the record soundly supports the court's finding of a change in circumstances (see Matter of Anthony YY. v. Emily ZZ., 189 A.D.3d 1924, 1924–1925, 138 N.Y.S.3d 265 [2020];  Matter of Charles AA. v. Annie BB., 157 A.D.3d 1037, 1038–1039, 68 N.Y.S.3d 581 [2018];  Matter of Rohde v. Rohde, 135 A.D.3d 1011, 1013, 22 N.Y.S.3d 666 [2016];  Matter of Breitenstein v. Stone, 112 A.D.3d 1157, 1158, 977 N.Y.S.2d 785 [2013]).

Regarding the best interests of the children, the father challenges Family Court's determination suspending his joint counseling sessions with the children.  The record reveals that, notwithstanding the efforts and encouragement of the mother, the children refused to attend the joint counseling sessions with the father.  The children's counselor testified that he raised the idea of joint counseling with the father to the children but that the children were not interested.  The counselor further testified that the children “would be set off” by any mention of joint counseling and that he did not want to destroy the rapport with them by bringing it up.  The counselor described the children as “very mature” and stated that they had developed the ability to self-advocate effectively, were good at communicating their needs and had sound judgment.  The mother likewise stated that the children were proud of themselves for learning to self-advocate.  The counselor opined that the father and the children “should not be forced together” and that expediting a relationship between them will cause trauma to the children.

In finding that, “at present[,] it would be detrimental to the [children] and would cause more trauma to force them into joint counseling with the father,” Family Court credited the testimony of the counselor.  The court also found that the mother was a credible witness but the father was not.  Taking into account the testimony from the Lincoln hearings and deferring to the court's assessment of witness credibility (see Matter of Michelle B. v. Angelo C., 189 A.D.3d 1907, 1909, 134 N.Y.S.3d 824 [2020]), the court's determination has a sound and substantial basis in the record (see Hogan v. Hogan, 159 A.D.3d 679, 681–682, 71 N.Y.S.3d 601 [2018];  Matter of Rohde v. Rohde, 135 A.D.3d at 1013, 22 N.Y.S.3d 666;  Matter of VanBuren v. Assenza, 110 A.D.3d 1284, 1285, 973 N.Y.S.2d 833 [2013];  Matter of Mohammed v. Cortland County Dept. of Social Servs., 186 A.D.2d 908, 908–909, 589 N.Y.S.2d 112 [1992], lv denied 81 N.Y.2d 706, 597 N.Y.S.2d 936, 613 N.E.2d 968 [1993]).  The father's remaining contentions have been considered and are unavailing.

ORDERED that the orders are affirmed, without costs.

Aarons, J.

Egan Jr., J.P., Lynch, Reynolds Fitzgerald and Ceresia, JJ., concur.