By: Daily Record Staff//December 9, 2010
By: Daily Record Staff//December 9, 2010//
Appellate Division, Third Department
Change in Circumstance — Best Interests
Matter of Graves v. Stockigt
Appealed from Family Court, Tioga County
Background: Pursuant to a January 2008 amended order, petitioner father and respondent mother shared joint custody of their son, who was born in 2004, with the mother having primary physical custody. In July 2008, the father commenced this modification proceeding seeking, among other things, sole custody as well as an order directing that the child’s stepfather have no contact with the child during visitation with the mother. In the interim, the father was awarded temporary custody with the directive that the stepfather have no contact with the child during the mother’s visitations. Following a hearing, family court found a sufficient change in circumstances and granted the father’s petition for sole custody, prompting this appeal.
Ruling: A petitioner seeking to modify an existing custody order must demonstrate a “sufficient change in circumstances reflecting a real need for change in order to insure the continued best interest of the child.” Here, the court finds that a sound and substantial basis in the record exists to support the trial court’s determination that such a change in circumstances occurred to warrant a change in custody.
Child Protective Services reports against the mother established her lack of supervision and inadequate guardianship of the child. Furthermore, at the time the petition was filed, the mother was being evicted from her home, the conditions of which were unsanitary and unsafe particularly with respect to the area outside the home. In addition, despite the child’s asthmatic condition as well as a restriction in the prior custody order prohibiting smoking around the child, the mother’s home smelled of smoke. Evidence in the record indicates that the child did not receive his daily asthma medicine when in the mother’s custody. Moreover, testimony at the hearing tends to support the allegations that the stepfather was abusive toward the child and the mother.
A.L. Beth O’Connor for the appellant; Margaret McCarthy, for the respondent; Allen E. Stone Jr. for the child