| Matter of Stevenson v Stevenson |
| 2010 NY Slip Op 01299 [70 AD3d 1515] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of Bruce L. Stevenson, Respondent, v Deborah K.Stevenson, Appellant. Jacqueline M. Grasso, Esq., Law Guardian,Appellant. |
—[*1] Jacqueline M. Grasso, Law Guardian, Batavia, appellant pro se. D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth DeV. Moeller of counsel), forpetitioner-respondent.
Appeals from an order of the Family Court, Genesee County (Eric R. Adams, J.), enteredJune 2, 2009 in a proceeding pursuant to Family Court Act article 6. The order granted thepetition and transferred physical custody of the parties' child to petitioner.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs and the petition is dismissed.
Memorandum: Family Court erred in granting the petition in which petitioner father soughtto modify the existing custodial arrangement by transferring custody of the parties' child fromrespondent mother to him. The court granted the petition based primarily on its view that thefather would foster a meaningful relationship between the child and the mother, while the motherwould not do likewise. That was error. We conclude that the father failed to make a sufficientshowing of a change in circumstances to warrant modification of the existing custodyarrangement (see Matter of Gridley vSyrko, 50 AD3d 1560 [2008]; Matter of Stacey L.B. v Kimberly R.L., 12 AD3d 1124 [2004],lv denied 4 NY3d 704 [2005]). A long-term custodial arrangement established byagreement, such as the arrangement herein, should not be modified unless it is demonstrated that"the custodial parent is unfit or perhaps less fit" (Fox v Fox, 177 AD2d 209, 211 [1992][internal quotation marks omitted]), and that cannot be said with respect to the custodial parent.In addition, although we are mindful that the hearing court's determination is entitled to greatrespect (see Matter of Louise E.S. v W. Stephen S., 64 NY2d 946, 947 [1985]), weconclude under the circumstances of this case that the court erred in failing to consider thepreference of the child, given his age and apparent maturity, to continue to reside with themother (see Matter of Suzanne T. vArthur L.T., 12 Misc 3d 691 [2005], affd 30 AD3d 1105 [2006]). " 'While theexpress wishes of children are not controlling, they are entitled to great weight, particularlywhere their age and maturity would make their input particularly meaningful' " (see Matter of O'Connor v Dyer, 18AD3d 757, 757 [2005]). Thus, under the circumstances of this case, we see no reason todisturb the existing custodial arrangement. Present—Smith, J.P., Fahey, Carni and Green,JJ.