| Matter of Billets v Bush |
| 2009 NY Slip Op 04312 [63 AD3d 1203] |
| June 4, 2009 |
| Appellate Division, Third Department |
| In the Matter of Shawn M. Billets, Respondent, v Stacie A. Bush,Appellant. (And Another Related Proceeding.) |
—[*1] Nancy E. LeBlanc, Law Guardian, Wilmington.
McCarthy, J. Appeal from an order of the Family Court of Essex County (Meyer, J.), enteredDecember 24, 2007, which granted petitioner's application, in two proceedings pursuant toFamily Ct Act article 6, to modify a prior order of custody.
In August 2006, Family Court entered a consent order maintaining joint legal custody of theparties' daughter (born in 1999), with primary physical custody to respondent (hereinafter themother), who lives in Essex County, and visitation and designated telephone contact to petitioner(hereinafter the father), who lives in Rensselaer County. In March 2007, the father filed thepresent application seeking primary physical custody due to the child's excessive absenteeism atschool, the mother's failure to attend to the child's medical needs and because the child wasspending more time in the care of the maternal grandmother than the mother. Followingfact-finding and Lincoln hearings, Family Court maintained joint custody but transferredprimary physical custody to the father with visitation to the mother. The mother appeals.
We begin by noting that Family Court specifically found that the mother lied about manysignificant matters during her testimony, ranging from her work hours and time spent out oftown to her conduct surrounding the child's dire need for dental treatment. Accepting this [*2]assessment of credibility by the court (see Matter of Adams v Bracci, 61AD3d 1065, 1067 [2009]; Matterof Burch v Willard, 57 AD3d 1272, 1273 [2008]), the proof at trial established that themother abdicated her parental responsibilities to the maternal grandmother, deliberatelyfrustrated and interfered with the father's communications with the child, demonstrated a lack ofconcern for the child's pressing and painful dental problems, failed to obtain expedient andnecessary dental treatment for the child out of animosity toward the father and overall providedlittle guidance to her. The proof further established that the child had many unexcused absencesfrom school while in the mother's care and that the mother's living situation was not particularlystable. The father, on the other hand, took appropriate steps to ensure that the child's dental needswere addressed, has a stable job with flexible and regular hours and has a stable home life withextended family in the area. Given these facts and circumstances, Family Court'sholding—that a transfer of physical custody to the father was both supported by a changein circumstances and promotes the child's best interest—has a sound and substantial basisin the record (see Matter of Adams v Bracci, 61 AD3d at 1067; Matter of Burch vWillard, 57 AD3d at 1273; Matterof Goldsmith v Goldsmith, 50 AD3d 1190, 1191 [2008]; Matter of Esterle vDellay, 281 AD2d 722, 726 [2001]).
Next, while Family Court erred in sua sponte taking judicial notice of prior orders pertainingto the mother's fiancÉ following the conclusion of the fact-finding hearing (see Matterof Justin EE., 153 AD2d 772, 774 [1989], lv denied 75 NY2d 704 [1990]), this errorwas harmless when considering the proof submitted in support of the modification petition (see Matter of Anjoulic J., 18 AD3d984, 987 [2005]; Matter of Justin EE., 153 AD2d at 774). Finally, we areunpersuaded, upon our review of the record, that the mother received ineffective assistance ofcounsel (see e.g. Matter of BrendenO., 20 AD3d 722, 723 [2005]).
Mercure, J.P., Spain, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order isaffirmed, without costs.