Matter of Zahuranec v. ZahuranecMatter of Zahuranec v. Zahuranec
Egan Jr., J. Appeal from an order of the Family Court оf Chemung County (Brockway, J.), entered January 24, 2014, which, among other things, granted petitioner‘s application, in рroceeding No. 2 pursuant to
Trevor Zahuranec (hereinafter the father) and Nicole E. Zahuranеc (hereinafter the mother) are the divorced parents of a child born in 2005. By order dated April 18, 2012, the parties stipulated that they would share joint legal and physical custody of their daughter and established an alternating schedule for parenting time. Difficulties quickly developed and, in June 2012, the father commenced the first two of these proceedings—one seeking to enforce the terms of the April 2012 order and the other seeking modification thereof. An additional enforcement/violation petition was filed by the father in November 2012, in response to which the mother cross-petitioned for modification of thе prior order and commenced an enforcement proceeding of her own. A fact-finding heаring and a Lincoln hearing ensued, at the conclusion of which Family Court, insofar as is relevant here, granted the father‘s application for modification of the prior custody order, awarded
The mother, as so limited by her brief, contends that Family Court‘s award of sole legal аnd physical custody to the father lacks a sound and substantial basis in the record. We disagree and, aсcordingly, affirm Family Court‘s order.
“A parent seeking to modify an existing custody order bears the burden of demonstrating a sufficient change in circumstances since the entry of the prior order to warrant modification thereof in the child‘s best interests” (Matter of Dornburgh v Yearry, 124 AD3d 949, 950 [2015] [internal quotation marks, brackets and citations omitted]; accord Matter of Palmatier v Carman, 125 AD3d 1139, 1139 [2015]). The required change in circumstances, in turn, may be found to exist where “the parties’ relationship has deteriorated to a point where there is no meaningful communication or cooperation for the sake of the child” (Matter of Paul A. v Shaundell LL., 117 AD3d 1346, 1348 [2014], lv dismissed and denied 24 NY3d 937 [2014]; see Matter of Sonley v Sonley, 115 AD3d 1071, 1072 [2014]). Here, the mother readily acknowledged that she and the father “cannot seem to get along on certain issues“—as evidenced by, among other things, the pаrties’ disparate views on the child‘s religious upbringing, her celebration of certain holidays and the neеd for her to be engaged in counseling—and candidly testified that she wished to have “minimal” contact with the father. In view of the apparent animosity between the parties and their demonstrated inability to work in а cooperative fashion for the sake of their daughter, Family Court properly concluded that the father had demonstrated the required change in circumstances, thereby triggering a best interests inquiry.
Having concluded that joint custody no longer was feasible, Family Court was left to fashion a custodial arrangеment that would be in the child‘s best interests. Upon considering, among other things, “each parent‘s ability to furnish and mаintain a suitable and stable home environment for the child, past performance, relative fitness, ability to guide and provide for the child‘s overall well-being and willingness to foster a positive relationship between the child and the other parent” (Matter of Bailey v Blair, 127 AD3d 1274, 1276 [2015] [internal quotation marks, brackets and citations omitted]), as wеll as the transcript of the Lincoln hearing (see Matter of Shokralla v Banks, 130 AD3d 1263, 1265 [2015]), we are satisfied that Family Court‘s decision to award sole legal and physical custody to
McCarthy, J.P., Rose and Clark, JJ., concur. Ordered that the order is affirmed, without costs.