A party seeking to modify a prior order of custody must show that there has been a change in circumstances since the prior order and, then, if such a change occurred, that the best interests of the child would be served by a modification of that order.

As provided in the April 2019 order, the mother’s resolution of her criminal matters, her successful completion of substance abuse treatment, and her compliance with mental health treatment recommendations constituted a change in circumstances.

Accordingly, Family Court preceded to conduct a best interests analysis, which involves the consideration of factors such as the past performance and relative fitness of the parents, their willingness to foster a positive relationship between the child and the other parent, their fidelity to prior court orders and their ability to both provide a stable home environment and further the child’s overall well-being.

Although the child’s desires are considered as part of the best interests analysis, they are but one factor to be considered and should not be considered determinative.

The mother contends that the custody determination was not in the best interests of the child and lacks a sound and substantial basis in the record.

The hearing testimony established that the mother has overcome her legal difficulties, is currently in successful recovery with reference to her substance abuse issues and continues to voluntarily attend counseling at an outpatient clinic continuing care program. The record further reveals that the mother continues to reside in the home where the child grew up, has stable employment, owns a vehicle and has a legal driver’s license allowing her to be involved in the child’s school activities and to have the child overnight and for extended periods of time.

The mother opines that now that she has her life back in order, custody and placement should resume as it was before – with the child being returned to her, where he has spent a majority of his life and has attended school.

The father testified and described his living arrangements where the child has lived with him, his stepmother and half sibling since July 2018. He averred that the child is doing well in school, is involved in extracurricular activities and has developed friendships in his new community.

According to the father, at one point the child experienced bed-wetting problems, which he believes were related to visits with the mother, but this matter has since been resolved. Considering the record as a whole, although the mother has made tremendous strides in dealing with her substance abuse and mental health issues, the father has provided much needed stability when the child needed it and has continued to do so, and the child is in a suitable, loving environment with his father.

We agree with Family Court that joint legal custody is not appropriate, as the mother did not seek legal custody in her petition and the parties are unable to communicate with one another in a meaningful and effective manner and do not work well together in a cooperative fashion for the benefit of the child.

Based on the foregoing, and according deference to Family Court’s credibility assessments, there is a sound and substantial basis in the record to support the court’s finding that it was in the child’s best interests to continue sole legal and physical custody to the father.

Denise VV. v. Ian VV., – NYS3d – , 2022 WL 1414583 (3^rd Dep’t. 2022)

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