Children grow. They change. Their needs — and their wishes — change. Their "best interests" can change, too. Often, parents have to accommodate those changes and this case presents such a challenge.

In this matter, a father seeks to change primary residence of his 14-year-old son over the objection of the child's mother. The facts in this matter are related in an earlier opinion and the court will not repeat them. The child lived with his mother until July 2014, when he chose to live with his father. The mother had — and still has — sole custody over the child. The father brought a petition to change the primary residence and establish joint custody. The court granted that petition on a temporary basis and the child has remained with his father for the last six months. While granting temporary relocation, the court denied the father's motion for summary judgment that the custody and primary residence of the child should be changed simply because the child voiced a strong opinion in favor of living with his father. The court declined to change any aspect of permanent custody, primary residence or visitation until a hearing occurred.

At the hearing, the mother, a nurse, represented herself. She also testified in her own behalf. The father, represented by counsel, testified as did his fiancé. The child, called by his attorney, also testified.

Modification of an existing custody or visitation arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification [*2]is necessary to ensure the continued best interests and welfare of the child. Matter of Acworth v. Kollmar, 119 AD3d 676 (2nd Dept. 2014); Matter of Lombardi v Valenti, 120 AD3d 817 (2nd Dept. 2014) (if there is an existing court-sanctioned child custody arrangement, there must be a showing of a change in circumstances, such that the modification is required to protect the best interests of the child); Matter of Ruple v. Cullen, 115 AD3d 1123 (3rd Dept. 2014) ( party seeking to modify an existing visitation order must demonstrate that there has been a change in circumstances since entry of the prior order that reflects a genuine need for the modification so as to ensure the best interests of the child); Matter of Anderson v Roncone, 81 AD3d 1268 (4th Dept. 2011) (an order of visitation cannot be modified unless there has been a sufficient change in circumstances since the entry of the prior order [that], if not addressed, would have an adverse effect on the child['s] best interests). These formulations of the rule highlight an important legal component: while modification of the financing of child support order require a "substantial change in circumstances,"^[FN1] the courts have suggested the threshold for changing residency or custody is does not require a "substantial change" but merely a "change in circumstances" and a court determination that the change is in the best interests of the child.^[FN2]

In deciding whether a change of circumstances has occurred, the child's desire to live primarily with his father is a substantial factor in the court's analysis. In addition, while the child originally resided with his mother at the conclusion of a fractious divorce in 2005, the circumstances have clearly changed for this child. The proof at trial demonstrates that the households of the two parents are substantially different. The couple have three children and the subject of this petition is the youngest of their children. The couple's older children, ages 19 and 17, reside with their mother and have no contact with their father. The father has a finance and lives with her. The child, when living with his father, is the only non-adult in the household. The mother has remarried and has other children. The household of the mother features the new child, the child's father and the mother's husband, the two older children and occasionally grandparents. Based on the proof at trial, it is fair to characterize the mother's household as "extremely active." The evidence establishes that the mother works extraordinarily hard — often long hours — to provide for her children and extended family and those extended hours eat into her time available for her child and attending to his individual needs.

In considering whether a change in circumstances exists, this court can consider the [*3]lifestyles of both households. Brescia v. Fitts, 56 NY2d 132, 141 (1982); Terrell v. Terrell, 299 AD2d 810, 811 (4th Dept. 2002) (court can consider the current and prior lifestyles of the child). The preponderance of the evidence establishes that the child is comfortable in the father's home, where he has his own bedroom, quiet time before and after dinner. His father picks him up from school. There was some evidence that the child, upon returning from time at his mother's home, was tired, disheveled and hungry, although the mother vigorously contested such complaints. The child offered complaints that his mother's house was messy and the refrigerator — a magnet for teenagers — was often almost empty.^[FN3] The child testified that, as often happens, he got in physical encounters with his brothers and at one point, he claimed a door was kicked in by a sibling during some sort of fracas. The child repeatedly complained of too much noise in his mother's house, a not-surprisingly observation considering that the house is the home for teenagers, parents, relatives and numerous pets. In contrast, the child strongly supported his routine at his father's home, getting more sleep, a consistent cooked dinner, a consistent schedule and a solid breakfast. The child testified that he shared more meals with his father at his father's home than he shared with his mother at his mother's home.^[FN4] The father picked the child up after school and activities and the child stated that at times, at his mother's home, someone had "forgotten to pick me up." At his mother's home, the child testified had he had little or no help with homework, but at his father's, his father helps him continually with his homework.

The father, in his testimony, noted that the child needed "down time," a chance to recover from the activities of the day and to do his homework in quiet, factors which the child said were not present in the mother's household. When the father was cross-examined by the mother, the mother referred to several instances involving actions and violence directed against the couple's children that occurred more than four years before. There was no evidence, contemporaneous with this application, that the father has repeated such conduct in the last two years and furthermore no evidence that he had ever directed anger or violent actions against the child involved in this proceeding.

The mother, in her testimony, contested claims that the child was poorly clothed when he left her home — "he does not wear hand-me-downs." She expressed concern that the child spent too much time on his computer when he stayed with his father, a realistic concern given the child's admitted interest — if not fascination — with computers. She described the child, lovingly, as "eccentric" and having interests divergent from those of other family members. Importantly, she also acknowledged that the households are different. Her homes was "noisier" because of the siblings and others in the house, as well [*4]as the family pets — a dog, the chinchilla and the parrot. She emphasized the importance of her "family unit," and the activities that the entire family — including the child — shared. She also noted that the child's siblings were impacted by the child's departure: one of his brothers was described as "devastated" by his brother's departure. She also contested the suggestion that the child's grades had improved, noting that the child had been an inconsistent performer in the classroom as his grades had constantly fluctuated. She also rebutted any suggestion that the child was perennially tried, adding that teenagers struggle with lack of sleep.^[FN5] In short, she argued that the child was actually no better off living with his father and that nothing had changed in the child's life.

Under cross-examination, the mother acknowledged that she worked a flexible schedule and often worked more than 44 hours per week. She admitted that she was on occasion not home for dinner at a conventional 5 pm - 6 pm time slot. But, after cross-examination and the presentation by the mother, there is no question in this court's mind that she is an active parent, working hard for all her children and family and further that she has an abiding and deep love for her child.

In this court's view, a change of circumstances has been established which requires this court to evaluate the child's living arrangement and custody under a "best interests" analysis. The change involves the child: now, in his teenaged years, the evidence proves that he is best served by a calmer and more controlled environment in which he can grow and study. The child, in his father's small home, becomes the center of his father's and the entire household's attention. He does not have to compete with other siblings — or half siblings — for parental attention. He does not have to compete over access to a computer or other household items. He does not have to compete with other children for assistance with homework. In short, this child needs the more simple, structured and quiet environment provided by his father's smaller and more intimate environment. The lack of that environment at the mother's house is not this watchful and loving mother's fault: it is simply an inevitable consequence of the size and activities of a more crowded household. The evidence points to the fact that this child needs one-on-one attention and, in the mother's household, given the other children and multiple adults and the mother's substantial work commitments, that type of attention is not occurring and not easily achieved, at least in this child's eyes. Many children could — and apparently do — flourish in the mother's home environment, but this child needs — and his best interests would be served by — another approach, such as that offered by his father's residence.

Having found a change in circumstances, this court must view the "totality of the circumstances" in deciding to change residence or custody. Friederwitzer v. Friederwitzer, 55 NY2d 89, 96 (1982); Filippi v Filippi, 118 AD3d 939 (2nd Dept. 2014). Those factors include (1) the original placement of the child, (2) the length of that placement, (3) the child's desires, (4) the relative fitness of the parents, (5) the quality of the home environment, (6) the parental guidance given to the child, (7) the parent's financial status, (8) his or her ability to provide for the child's emotional and intellectual development, and (9) the willingness of the parent to assure meaningful contact between the child and the [*5]other parent. In applying these factors, based on the proof at trial, this court finds:

Based on the totality of circumstances and the facts adduced in this hearing, the court finds the best interests of this child require that he primarily reside with his father. There is little evidence that these parents have been able to effectively communicate with each over the child's future. Therefore, joint custody is not appropriate. Matter of Robert G. v. Peter I., 43 AD3d 1162 (2nd Dept. 2007). This court awards the father sole custody of the child, but the father shall not change the child's physician, dentist or school district without the mother's approval or the further order of this court. The mother shall have at [*6]least the following access to the child so long as the parents reside in the same school district:

In addition, the parties shall, within 10 days from the entry of an order incorporating this decision, provide an order confirming child support payment for all the father's children and that payment shall be calculated in conformance with the Child Support Standards Act and other law.

SUBMIT AN ORDER ON NOTICE TO BOTH PARTIES.

Richard A. Dollinger, A.J.S.C.