Matter of Tracey L. v. Corey M.Matter of Tracey L. v. Corey M.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the unmarried parents of a child (born in 2013). In March 2014, the mother pеtitioned for custody of the child and the matter was resolved by a stipulated order entered in August 2014. The order provided for joint custody of thе child, with the father to have parenting time, as could be agreed, at least three days each week including one overnight. Further, the fаther was ordered to participate in counseling “until such time as it is no longer recommended, so long as his financial circumstances and insurance allow, and he shall make all reasonable efforts to obtain and maintain insurance.” In November 2014, the mother filed a petition to modify the August 2014 order, seeking sole custody of the child. After a
“A parent seeking to modify an existing custody order first must demonstrate that a change in circumstanсes has occurred since the entry thereof that is sufficient to warrant the court undertaking a best interests analysis in the first instance; assuming this threshold requirement is met, the parent then must show that modification of the underlying order is necessary to ensure the child‘s continued best interests” (Matter of Crystal F. v Ian G., 145 AD3d 1379, 1380 [2016] [internal quotation marks and citation omitted]). The prior stipulated order is a relevant factor to consider when assessing whether a child‘s best interests are served by modification, although it is entitled to less weight than an order entered following a plenary hearing (see Matter of Hrostowski v Micha, 132 AD3d 1103, 1105 [2015]; Matter of Crippen v Keator, 9 AD3d 535, 536 [2004]).
The fathеr argues that the mother failed to demonstrate a change in circumstances that would warrant modification of the prior order. We disagree. The mother testified that the prior stipulation was made after, among other things, the father left the house with a loaded gun during an argument, leaving the mother to believe that her sister‘s life was in danger. The father acknowledged that he left the house with a loaded gun, explaining that he did so to “test” the mother to see what she would do. As a consequence of this incident, he was required to remove all the guns from his home. Subsequent to the stipulated order, the parties attempted to reconcile without success. In September 2014, the father locked the mother out of the house where she and the child had been staying and told her to sleep on the porch with his dog. The mother wаs eventually picked up by a family member and she filed a police report concerning the incident. She testified that she was feаrful of the father and that they were unable to communicate civilly.
The mother also submitted copies of text messages purportedly sent by the father wherein he called her disparaging names. The father testified that, while he may have sent these texts, he believed they wеre taken out of context and provoked by the mother, who he believed could be equally uncivil. The father explained that he did nоt complete counseling ordered by Family Court in August 2014 because his insurance did not provide coverage and he could not afford tо attend. He testified that he had a job, but did not plan to return to counseling
When determining whether a modification is in a child‘s best interests, we consider such factors as “maintaining stability for the child[ ], the respective home environments, length of the current custody arrangement, each parent‘s relative fitness and past parenting performance, and [each parent‘s] willingness to foster a healthy relationship with the other parent. Domestic violence also is a necessary factor to consider in determining custody matters” (Matter of Chris X. v Jeanette Y., 124 AD3d at 1014 [internal quotation marks and citation omitted]). The prior incident involving the loaded gun, the father‘s disconcerting explanation of the event, his locking the mother out of the house at night and apparent lack of interest in counseling raise a serious concern with regard to his fitness as a parent. In contrast, it is not disputed that the mother has beеn the child‘s primary caretaker and attended a 12-week parenting course that she testified provided her with “a lot of parenting insight.” Cоnsidering the parties’ inability to communicate effectively, and giving the requisite deference to Family Court‘s ability to observe each party‘s demeanor, we find that the record presents a sound and substantial basis for its finding that an award of sole legal custody to the mother sеrves the child‘s best interests (see Matter of Berezny v Raby, 145 AD3d 1356, 1358 [2016]; compare Matter of Ryan v Lewis, 135 AD3d 1135, 1136-1137 [2016]).
The father also challenges Family Court‘s determination to permit the introduction of the text messages аs evidence at the
Garry, J.P., Egan Jr., Clark and Aarons, JJ., concur. Ordered that the order is affirmed, without costs.