| Matter of Yaddow v Bianco |
| 2009 NY Slip Op 08389 [67 AD3d 1430] |
| November 13, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Wayne E. Yaddow, Jr., Appellant, v Lisa M.Bianco, Respondent. |
—[*1] Edward G. Kaminski, Utica, for respondent-respondent. Kristine A. Kipers, Law Guardian, New Hartford, for Gabriel Y.
Appeal from an order of the Family Court, Oneida County (Brian M. Miga, J.H.O.), enteredOctober 22, 2008 in a proceeding pursuant to Family Court Act article 6. The order, insofar asappealed from, granted the cross petition and petition of respondent awarding her sole physicalcustody of the parties' child.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on thelaw without costs and respondent's cross petition and petition are dismissed.
Memorandum: Petitioner father appeals from an order that, inter alia, granted the crosspetition and petition of respondent mother seeking to modify the existing custody arrangementby awarding sole physical custody of the parties' child to the mother. As the father correctlycontends, the mother failed to establish a significant change of circumstances sufficient towarrant Family Court to determine whether a change in custody was in the best interests of thechild. The court determined that the fact that the father had begun to commute to an out-of-statecollege two days a week constituted a significant change of circumstances. We cannot agree,based on the record before us. The father testified that he continued to arrive home each nightbefore dinner and that the commuting arrangement was only temporary. Indeed, there was noevidence that the father intended to relocate (see Matter of Bjork v Bjork, 23 AD3d 784, 785 [2005], lvdenied 6 NY3d 707 [2006]). We reject the additional contention of the mother that herhaving given birth to another child constitutes a significant change of circumstances. Theseparation of the parties' child from a half-sibling who was born following the joint custodyorder and who "never shared a household" with the half-sibling is not a factor to consider indetermining whether there was a significant change of circumstances (Matter of Chant vFilippelli, 277 AD2d 741, 742 [2000]).
Finally, even assuming, arguendo, that the mother established a significant change ofcircumstances, we nevertheless would conclude, based on the record before us, that a change incustody was not in the best interests of the child (see generally Matter of Maher vMaher, 1 AD3d [*2]987, 988-989 [2003]).Present—Martoche, J.P., Smith, Fahey, Carni and Pine, JJ.