After finding that a change in circumstances had occurred since the entry of the prior order, Family Court accordingly proceeded to a best interests analysis that, contrary to the mother’s contention, appropriately weighed the past performance and relative fitness of the parents, their willingness to foster a positive relationship between the children and the other parent, their fidelity to prior court orders and their ability to both provide a stable home environment and further the children’s overall well-being. The record evidence demonstrated that the father was the only parent willing to foster a positive relationship between the children and the other parent. Significantly, the mother admitted during her testimony that she does not wish to talk to the father and only does so when it is unavoidable. The father also demonstrated a greater ability to provide a stable home environment and further the children’s overall well-being. The testimony established that the mother and her husband have one vehicle, which lacks sufficient capacity to transport the entire family, yet they regularly drive to church with seven people in a vehicle with a six-person capacity. In addition, the schedule of parenting time requires that both parties share in the driving even though neither the mother nor her husband possessed a valid driver’s license at the time of the initial hearing. Further, the unrefuted testimony established that the mother’s home underwent a period without electricity in the summer of 2019 due to nonpayment of the electric bill. After considering the proof, and according deference to the credibility and factual determinations of Family Court, we are satisfied that the determination to award sole legal and physical custody of the children to the father is supported by a sound and substantial basis in the record.
Timothy RR. v. Peggy SS., – NYS3d – , 2021 WL 4897586 (3rd Dep’t. 2021)