LaRussa v. WilliamsLaRussa v. Williams
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the unmarried parents of a daughter (born in 2008). Pursuant to a June 2009 consent order, as amended in July 2010, the parties shared joint legal custody, with the mother having primary physical custody and the father having scheduled parenting time, including three weeks in the summer. Following a November 2010 incident in which the father attempted suicide in the presence of the mother and the child, the father relocated to Georgia, where he was hospitalized for a period of
Initially, we reject the father‘s argument that the Judicial Hearing Officer (hereinafter JHO) who presided over the proceeding lacked subject matter jurisdiction. While the record before us does not include an order of reference designating the JHO (see
Turning to the merits of Family Court‘s order, the father does not dispute that there has been a change in circumstances such that a modification of the existing custody order is necessary to further the child‘s best interests (see Matter of Breitenstein v Stone, 112 AD3d 1157, 1157-1158 [2013]; Matter of Casarotti v Casarotti, 107 AD3d 1336, 1337 [2013], lv denied 22 NY3d 852 [2013]; Matter of Melody M. v Robert M., 103 AD3d 932, 933 [2013], lv denied 21 NY3d 859 [2013]). Indeed, the manifestation of the father‘s psychological issues, his move to Georgia and his diagnosis of schizophrenia all establish a change in circumstances that rendered the existing custody order unworkable. As a result, Family Court properly conducted the requisite best interests analysis (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Matter of Flood v Flood, 63 AD3d 1197, 1198 [2009]). In this regard, we agree with the father that Family Court should not have applied a negative inference based upon the
The mother testified in great detail about the November 2010 incident, including the father‘s attempts to stab himself, to spray chemicals in his mouth and to hang himself.3 According to the mother, the child was present in the home, observed the father‘s actions and was screaming and crying. Since this incident, the father has seen the child only three times, all in the presence of other adults. The mother additionally agreed to allow the father and the paternal grandmother to take the child to Pennsylvania for a family event, upon the grandmother‘s assurance that she would be responsible for the child‘s care. Although the grandmother testified that she did not leave the child alone with the father, the mother was convinced—based upon the father‘s assertions—that this was not true. The mother also testified that the father had a long history of alcohol abuse which, in combination with his mental health issues, raised concerns for the child‘s safety if the child was left alone with him. Finally, the mother testified that she does not believe that she and the father are capable of cooperating for the purpose of continuing joint legal custody because she does not feel comfortable speaking to the father about issues concerning the child due, in part, to him having threatened her as a result of her attempt to modify his visitation rights.
The father denied that he had attempted suicide, but testified that he moved to his mother‘s home in Georgia because he was ill and acknowledged that he was hospitalized on multiple occasions and was ultimately diagnosed with schizophrenia. According to his medical records, the father was prescribed medication and was enrolled in an outpatient treatment program five days a week. While the father also denied that he had an alcohol problem, he admitted that he started drinking at a young age and that he was suffering from alcohol poisoning at the time he was admitted to the outpatient treatment program. Additionally, there is evidence in the record that he has consumed alcoholic beverages since that time.
Despite evidence of some improvement in the father‘s condi-
Considering the record as a whole, and according deference to Family Court‘s credibility assessments (see Matter of Breitenstein v Stone, 112 AD3d at 1158), we find a sound and substantial basis in the record for that court‘s determination that the best interests of the child are served by an award of sole legal custody to the mother (see Matter of Melody M. v Robert M., 103 AD3d at 933; Matter of Fish v Fish, 100 AD3d 1049, 1050 [2012]) with supervised visitation to the father (see Matter of Burrell v Burrell, 101 AD3d 1193, 1194 [2012]; Matter of Knight v Knight, 92 AD3d 1090, 1092-1093 [2012]; Matter of Beard v Bailor, 84 AD3d 1429, 1430 [2011]). Moreover, we discern no basis to disturb Family Court‘s direction that the father‘s visitation occur within New York or that court‘s choice of supervisor (see Matter of D‘Angelo v Lopez, 94 AD3d 1261, 1262 [2012]).4 Nonetheless, there is nothing in the record to indicate that it would not be in the child‘s best interests to grant the father‘s request that he have direct access to the child‘s medical and educational records (see Matter of Deyo v Bagnato, 107 AD3d 1317, 1320 [2013], lv denied 22 NY3d 851 [2013]; Matter of Ruple v Harkenreader, 99 AD3d 1085, 1087 [2012]) and we modify the custody order, accordingly. To the extent not specifically addressed herein, the father‘s remaining contentions have been examined and are unavailing.
Peters, P.J., Lahtinen and Egan Jr., JJ., concur. Ordered that the order is modified, on the law, without costs, by directing that respondent shall have direct access to the child‘s medical and educational records, at his own expense, and, as so modified, affirmed.