Rhubart v. Rhubart
789 N.Y.S.2d 385
N.Y. App. Div.
2005
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In the Matter of DENIS RHUBART, Respondent, v BARBARA A. RHUBART, Appellant. In the Matter of BARBARA A. RHUBART, Appellant, v DENIS RHUBART, Respondent.

Appellate Division of the Supreme Court of New York, Fourth Department

15 A.D.3d 936 | 789 N.Y.S.2d 385

Present—Scudder, J.P., Kehoe, Smith, Pine and Hayes, JJ.

Appeal from an order of the Family Court, Lewis County (Charles C. Merrell, J.), entered November 28, 2003 in a proceeding pursuant to Family Court Act article 6. The order awarded sole custody of the children to the father and visitation to the mother.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by vacating the second ordering paragraph and as modified the order is affirmed without costs.

Memorandum: Petitioner-respondent Denis Rhubart (petitioner) and respondent-petitioner Barbara A. Rhubart (respondent) each filed a petition to modify a prior order of joint custody by seeking sole custody of their three children. “The record supports Family Court‘s determination that the parties’ acrimonious relationship and inability to communicate in a civil manner warranted a change from joint custody to sole custody . . . and that the best interests of the child[ren] will be served by awarding sole custody to [petitioner]” (). We modify the order, however, by vacating the second ordering paragraph. That paragraph provides that the custodial arrangement changes back to joint custody automatically if respondent completes counseling (see ; ). “No one factor is determinative of whether there should be a change in custody” ().

Present—Scudder, J.P., Kehoe, Smith, Pine and Hayes, JJ.