Modification of a court-approved stipulation setting forth the terms of custody or parental access is permissible only upon a showing that there has been a sufficient change in circumstances such that modification is necessary to ensure the best interests and welfare of the child.

The paramount concern when making such a determination is the best interests of the child under the totality of the circumstances. Inasmuch as custody determinations depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded to the hearing court’s findings in this regard and the court’s findings will not be disturbed unless they lack a sound and substantial basis in the record.

Here, the mother’s admitted violations of the stipulation of settlement in failing to comply with the provisions concerning the father’s parental access established a sufficient change in circumstances to permit the father to seek sole custody under the terms of the stipulation. However, the father failed to establish that such a change of custody would be in the best interests of the child.

Parental alienation of a child from the other parent, including willful interference with their parental access rights, is an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the offending party is unfit to act as custodial parent.

Here, however, while the mother failed to comply with the father’s parental access on multiple occasions, many of the other violations alleged by the father appear to have been caused by the parties’ confusion over the parental access schedule, which was remedied when the parties agreed to a specific schedule of alternate weekends during the proceedings.

The child wished to continue her parental access time with the father, undermining the father’s claim of alienation. Moreover, the father’s own actions, including his failure to exercise four weeks of extra parental access in the summer of 2019, which he was awarded in settlement of his separate violation petition, contributed to the father’s failure to have more parental access with the child and any resulting alienation.

Furthermore, the child had always lived primarily with the mother, and wished to continue to do so, and the father had been uninvolved with the child’s medical appointments and schooling. While a child’s expressed preference is not determinative, it is some indication of what is in the child’s best interests. Maintenance of status quo, while also not decisive, is a positive value entitled to great weight.

Finally, although the parties exhibited difficulty in effectively communicating concerning the child, the Family Court’s determination that the parties’ relationship was not so acrimonious so as to warrant a change of custody, and that a change of custody would further inflame the relationship between the parents and not be in the child’s best interests, was supported by a sound and substantial basis in the record.

Burke v. Squires, – NYS3d – , 2022 WL 385962 (2nd Dep’t. 2022)