Summary
The New York Appellate Division reversed an order transferring physical custody of the parties’ child from the mother to the father and dismissed the father’s modification petition. The court held that the father failed to show a sufficient change in circumstances and that Family Court improperly failed to consider the mature child’s preference to remain with the mother.
Topics
Practice areas
Questions Presented
- Whether the father established a sufficient change in circumstances to warrant modification of the existing custody arrangement.
- Whether Family Court improperly relied on the parents' respective willingness to foster the child's relationship with the other parent without finding the custodial mother unfit or less fit.
- Whether Family Court erred by failing to consider the preference of the child, given his age and apparent maturity.
Holdings
- The father failed to make a sufficient showing of a change in circumstances warranting modification of the existing custodial arrangement.
- Family Court erred in failing to consider the child's preference to continue residing with the mother, given the child's age and apparent maturity.
Key quotations
“A long-term custodial arrangement established by agreement, such as the arrangement herein, should not be modified unless it is demonstrated that “the custodial parent is unfit or perhaps less fit”” (1515)
“While the express wishes of children are not controlling, they are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful” (1516)
Factual background
The parties had an existing long-term custodial arrangement established by agreement under which the child resided with the mother. The father sought to modify that arrangement and transfer physical custody to himself. Family Court relied primarily on its view that the father would foster a meaningful relationship between the child and the mother, whereas the mother would not reciprocate, but the Appellate Division found no sufficient showing that circumstances had changed or that the mother was unfit or less fit.
Procedural history
The Genesee County Family Court granted the father's petition under Family Court Act article 6 and transferred physical custody to him. The Appellate Division unanimously reversed on the law and dismissed the petition.