Diffin v. TowneDiffin v. Towne
Appeal from an order of the Family Court of Montgomery County (Córtese, J.), entered August 11, 2006, which, among other things, granted petitioner’s application, in four proceedings pursuant to Family Ct Act articles 4 and 6, to modify a prior order of custody and visitation.
The parties were married in 1993 and divorced in 2000. They have a son, Derrell, who was born in 1995. In 1997, they entered into a separation agreement which was later incorporated but not merged into their judgment of divorce. They agreed to joint legal custody of their son with primary physical custody to respondent (hereinafter the mother), residing in New York, and liberal visitation to petitioner (hereinafter the father), who resides in Virginia. This arrangement was not challenged by either party until April 2004, when the father learned that the mother, who was a member of the Army National Guard, was to be deployed to Iraq in May 2004 for a period of at least one year. He then petitioned for custody of Derrell.
The mother sought to stay the proceedings pursuant to Military Law §§ 304 and 307, which require a court, upon application of a person in military service, to stay any proceeding in which the person is involved during the period of such duty, unless the person’s ability to participate in the lawsuit is unaffected by his or her military service.
In October 2005, the mother petitioned Family Court for reinstatement of the original custody arrangement to be effective upon her return from duty in November 2005. The father then petitioned to modify the temporary custody order to award primary physical custody to him, with substantial visitation to the mother.
A trial was held on all petitions, at the outset of which the parties stipulated to joint legal custody of Derrell, leaving only the issue of physical custody to be resolved. Following testimony from both parties and the father’s wife, as well as a Lincoln hearing, Family Court, among other things, partially granted the father’s custody petitions by awarding him primary physical
A petitioner seeking to modify an existing custody order must demonstrate that since the order was entered there has been a significant change in circumstances such that a change in the custody arrangement is in the child’s best interests (see Matter of Bedard v Baker,
We begin our discussion by noting that the parties are both excellent parents. Both have demonstrated stable employment, adequate income, suitable homes, and an unwavering commitment to Derrell’s well-being. Indeed, the parties enjoyed a longstanding shared custody arrangement that nurtured Derrell’s relationships with both parents, his half siblings, his stepparents and other family members; an arrangement which, but for the mother’s deployment in 2004, might well remain in effect today.
However, the fact remains that the mother was deployed and, while we do not hold that her deployment in and of itself constitutes a significant change in circumstances, we must consider the consequences of her extended absence in determining whether such .a change exists. Since shortly after Family Court issued the temporary custody order, Derrell has been living with his father and has adjusted well. Not only has he done well academically, he has actively participated in organized sports, made friends and developed a strong bond with his sister. Importantly, coupled with the substantial changes in Derrell’s life is the change in the mother’s situation, in that she is now legally separated from her husband and shares custody of Der
Initially, in that regard, we note that Derrell has expressed no preference to reside with one parent over the other. Additionally, we agree with Family Court’s findings that both parents are fit and financially able to care for him, and we also recognize that each parent has been, and remains, willing to foster Derrell’s relationship with the other. Both parents are concerned with his academic success and have shown, overall, the ability and willingness to guide him in that regard. Both also have adequate living arrangements.
Furthermore, Derrell has family ties in both New York and Virginia. The father is married and Derrell has a good relationship with his stepmother; the mother is legally separated, but has an amicable relationship with her husband, with whom Derrell also has a good relationship. In his father’s home, Derrell resides full time with his half sister. Derrell’s grandparents, with whom he is close, reside near the mother, as do other maternal relatives. He has also formed relationships with his stepmother’s relatives in Virginia. In sum, while the father’s situation is more settled than the mother’s in that he owns his home and is in an apparently steady marriage, the record establishes that Derrell would be loved, supported and well cared for in the custody of either parent.
Notably, in determining best interests, we must also consider the advantage to a child of maintaining stability in his living situation (see Friederwitzer v Friederwitzer,
The parties’ remaining contentions have been considered and found to be unpersuasive.
Peters, Spain, Carpinello and Lahtinen, JJ., concur. Ordered that the order is affirmed, without costs.
Notes
The mother, who had remarried and had another son with her husband, Jason Towne, argued that Towne should have physical custody of Derrell during her absence.