Seacord v. SeacordSeacord v. Seacord
Spain, J. Appeal from an order of the Family Court of Essex County (Meyer, J.), entered December 30, 2009, which, among other things, grаnted petitioner‘s application, in two proceedings pursuant to
In 2005, after the parties
In June 2009, after the father refused to consent to recommended orthodontic treаtment for the oldest child, the mother commenced the first of these proceedings seeking a modification of the priоr order of custody alleging that she should be allowed to make healthcare decisions without the father‘s approval. Thereafter, the mother filed a second petition alleging the father‘s willful violation of the custody order by, among other things, interfering with the children‘s education and healthcare treatment as well as the mother‘s custodial time. She also filed an amеnded petition for modification seeking sole physical and legal custody of both children alleging that the relationship bеtween the parties had deteriorated to such point that joint custody was no longer feasible. Following a fact-finding hearing, including a Lincoln hearing with the children, Family Court found that the father had willfully violated the prior custody order and awarded sole custody tо the mother, subject to specific, liberal parenting time to the father. The father now appeals.
“To sustain a finding of сivil contempt based upon a violation of a court order, it is necessary to establish that a lawful court order clеarly expressing an unequivocal mandate was in effect and that the person alleged to have violated that ordеr had actual knowledge of its terms” (Labanowski v Labanowski, 4 AD3d 690, 694 [2004], quoting Graham v Graham, 152 AD2d 653, 654 [1989]; accord Matter of Gonzalez v Hunter, 50 AD3d 1262, 1264 [2008]).
Moreover, “[a] willful violation of a Family Court order must be established by clear and convincing evidence” (Matter of Cobane v Cobane, 57 AD3d 1320, 1322-1323 [2008], lv denied 12 NY3d 706 [2009]; see Matter of Blaize F., 48 AD3d 1007, 1008 [2008]). Here, the record fully supports Family Court‘s finding that the father willfully violated the 2008 order when he unjustifiably interfered with his children‘s Cаtholic school education by, among other things: refusing to consent to the youngest daughter‘s participation in a long plаnned school-sponsored field trip to Boston; purposely keeping—at the last minute—said youngest daughter from the single performance school play in which she had a role, taking the children instead to visit his friend; preventing that same child from reading certain books assigned pursuant to a diocese approved curriculum; and calculatedly keeping the oldest daughter from her sixth-grade graduation ceremony until it was more than half over. Additionally, despite his admitted awareness of the terms of the 2008 order, the father refused to consent to the children‘s recommended and necessary orthodontic treatment and to the administration to the oldest daughter of a vaccination intended to prevent cervical cancer recommended by her pediatrician, and refused, despite the specific order to do so, to return the children to the mother‘s custody on the second Saturday of their 2009 spring break.
The father‘s testimony was sufficient to establish that he interfered with the mother‘s custodial time and unilaterally interfered with both children‘s education and healthcare treatment (see Matter of Cobane v Cobane, 57 AD3d at 1323). We reject the fаther‘s contention that Family Court improperly considered his religious beliefs. He was found by Family Court to have violated the very terms of an agreement he had consented to in 2008 when he was well aware of his and the mother‘s differing religious views. Despite this cоnsent, the record contains clear evidence of willful and sometimes cruel violations by the father.
Next, the record fully suрports Family Court‘s modification of the prior custody order awarding sole custody to the mother. “Modification of an existing сustody arrangement is appropriate where the petitioner establishes by a preponderance of the еvidence that there has been a change in circumstances and that modification is necessary to ensure the best interests of the children” (Matter of Cobane v Cobane, 57 AD3d at 1321-1322 [citations omitted]; see Matter of Jeker v Weiss, 77 AD3d 1069, 1070 [2010]; Matter of Siler v Wright, 64 AD3d 926, 928 [2009]; Matter of Bedard v Baker, 40 AD3d 1164, 1165 [2007]). In as-sessing
Here, the record reflects a significant change in circumstances warranting modification of the prior order of joint custody based upon the father‘s behavior and the continued deterioration of the relationship between the parties. Family Court considered the appropriate factors (see Matter of Jeker v Weiss, 77 AD3d at 1070; Matter of Siler v Wright, 64 AD3d at 928; Matter of Goldsmith v Goldsmith, 50 AD3d at 1191; Matter of Bedard v Baker, 40 AD3d at 1165), and the record fully supports its determinаtion that it was in the children‘s best interests to award sole custody to the mother. Accordingly, the order of Family Court should be affirmed.
Peters, J.P., Rose, Kavanagh and Egan Jr., JJ., concur. Ordered that the order is affirmed, without costs.