Maute vs. Maute is a case where a Family Court Judge granted custody of a troubled male child to the mother in 1991 after years of litigation. The father appealed and lost in 1993. The father filed a new petition of custody. The Family Court denied the father’s petition despite finding that “time is running out [for the child]. If in fact he is worse now than he was in 1991, what can we look forward to in [future years]?” The Father appealed and finally in 1996 he was granted custody by the Appellate Division finding that “the custodial parent’s efforts have not been successful” after at least 8 years of litigation.
In end, the Appellate Court stated that “ultimate resolution of his difficulties will only occur if both parents forge a consistent, firm approach in regard to his upbringing and development.” This finding begs the question: If the Appellate Court ultimately had this capacity to understand this situation, why did the Family Court and the Appellate Court allow 8 years of the child’s life to be consumed by litigation?
PLEASE SEE BELOW A COPY OF THE DECISION ON APPEAL FROM THE THE APPELLATE DIVISION, 2ND DEPARTMENT OF NEW YORK STATE.
228 A.D.2d 444 (1996)
643 N.Y.S. 2d 225
In the Matter of John Maute, Appellant, v. Lora Maute, Respondent
Appellate Division of the Supreme Court of the State of New York,
Second Department. June 3, 1996
Miller, J. P., Hart, Friedmann and Florio, JJ., concur.
Ordered that the order is reversed, on the law and as a matter of discretion in the interest of justice, without costs or disbursements, the petition is granted, the application for an award of counsel fees is denied, and the matter is remitted to the Family Court, Rockland County, to establish an appropriate visitation schedule for the mother in accordance herewith.
A petition for a modification of custody should only be granted “`when the totality of circumstances, including the existence of the prior award'”, warrants it in the best interest of the child (Eschbach v Eschbach, 56 N.Y.2d 167, 172). The custodial parent is given priority in order to maintain and promote stability in the child’s life (see, Matter of Lobo v Muttee, 196 AD2d 585, 587).
Custody of this child was awarded to the mother pursuant to an order of the Family Court, Rockland County, dated June 24, 1991, which was affirmed by decision and order of this Court in 1993 (see, Matter of Maute v Maute, 199 AD2d 268).
Since that time, the teenage child’s antagonism and hostility toward his mother, which was evident even then, has notably worsened. His academic performance is poor and his conduct is disturbing. He has demonstrated not only a lack of respect for his mother but has left home several times and has even threatened suicide. His intense wish to reside with his father remains constant. In view of the fact that the custodial arrangement which the custodial parent’s efforts have not been successful we reverse [and now make a] finding that the father will be a more successful custodian.
While we agree with the Family Court’s conclusion that the child’s teenage years and his parents’ hostile attitude toward one another are likely factors contributing to the child’s anger and antagonism toward his mother, ignoring the child’s wishes and the failure of his present circumstances does nothing to remediate his deteriorating condition. Moreover, we agree with the Family Court that “time is running out [for the child]. If in fact he is worse now than he was in 1991, what can we look forward to in [future years]?”
In circumstances such as these, where, notwithstanding the apparent good intentions of both parents, the custodial parent’s efforts have not been successful, the child’s wishes and the willingness of the other parent to take over should be accommodated. However, the child’s physical residence should not be changed until the end of the 1995-1996 school year.
Although we disagree with the Family Court’s decision to maintain custody with the mother, we agree with that court’s observation that this child is “not beyond help, and not beyond hope”.
We note that the ultimate resolution of his difficulties will only occur if both parents forge a consistent, firm approach in regard to his upbringing and development.
The mother’s application for an award of counsel fees should be denied in view of the fact that we have sustained the father’s petition.