Matter of Rhubart v Rhubart
2005 NY Slip Op 00825 [15 AD3d 936]
February 4, 2005
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, April 20, 2005

In the Matter of Denis Rhubart, Respondent, v Barbara A. Rhubart, Appellant. In the Matter of Barbara A. Rhubart, Appellant,
Denis Rhubart, Respondent.


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]" (Matter of Dube v Dube, 259 AD2d 1041, 1041 [1999]). 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 Matter of Carter v Kratzenberg, 209 AD2d 990, 991 [1994]; Rybicki v Rybicki, 176 AD2d 867, 871 [1991]). "No one factor is determinative of whether there should be a change in custody" (Carter, 209 AD2d at 991). Present—Scudder, J.P., Kehoe, Smith, Pine and Hayes, JJ.