In the Matter of IVAN GUTIY, Appellant, v LYUBOV GUTIY, Respondent. (And Another Related Proceeding.)
Appеllate Division of the Supreme Court of New York, Third Department
May 3, 2007
834 NYS2d 734
40 AD3d 1155
Lahtinen, J. Appeal from an order of the Family Court of Tioga County (Argetsinger, J.), entered April 10, 2006, which, inter alia, granted respondent‘s application, in two proceedings pursuant to
The partiеs, parents of seven children, separated in 2003 and custody proceedings ensued as to the five unemancipated children. During the pendency of those proceedings, respondent (hereinafter the mother) moved to New Jersey with the five children to be near her extended family. Petitioner (hereinafter the father) concеded that the two oldest of the five (born in 1987 and 1988) should stay with the mother, but he sought custody of the three youngest (born in 1991, 1993 and 1996) (hereinafter collectively referred to as the children). In December 2003, Family Court granted the parties joint custody of the children, with the mother having рhysical placement upon the condition that she return to Tioga County or a сounty contiguous thereto. She did not leave New Jersey and, accordingly, placement remained with the father.
In 2005, the oldest of the three children refused to return to thе father following his summer break with the mother and he enrolled in school in New Jersey that fаll. This prompted the father to file a violation petition against the mother. She responded with a petition (subsequently amended in December 2005) seeking modification оf the prior custody order. Following a hearing, including Lincoln hearings with each of the three children, Family Court rendered a detailed written decision in which it dismissed the father‘s violation petition and granted the mother‘s application for physical plaсement of the children with her. The father appeals.
Here, Family Court‘s decision is fully supported by the record. There was credible evidence that the father repeatedly made disparaging comments about the mother in the children‘s presence and this had a detrimental effect on them. The mother, on the other hand, encouraged the children‘s relationship with thе father. While not dispositive, it is readily apparent that the children desire to live with their mother and the Law Guardian advocated that they be placed with her. A network of other family members, including the emancipated siblings, live near the mother in New Jersey. Thе mother, although struggling to learn English, has been able to locate employment that hаs a schedule similar to the children‘s school day and she has a suitable home for thе family. The father is unemployed and lives with his mother, who does most of the household chоres. The father has used unduly severe discipline methods on the children. When the mother did nоt have placement of the children, she was nevertheless diligent in her visitation desрite the fact that the father was consistently late in arriving at the meeting place between the residences. There was other proof raising serious concеrns about the father‘s parenting skills and the potential detrimental effect of thosе on the children. He elected not to testify, enabling the court to draw the strongest рossible inferences against him (see Matter of Miosky v Miosky, 33 AD3d 1163, 1167 [2006]). A review of the record shows that the decision to modify the custody arrangement and permit relocation of the children was in thе children‘s best interests.