| Matter of Slade v Hosack |
| 2010 NY Slip Op 06961 [77 AD3d 1409] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of Aaron S. Slade, Respondent, v Tonya S. Hosack,Appellant. |
—[*1] Samuel A. Dispenza, Jr., East Rochester (Terrence G. Barker of counsel), forpetitioner-respondent. Michael J. Sullivan, Attorney for the Child, Fredonia, for Xander K.S.
Appeal from an order of the Family Court, Cattaraugus County (Paul B. Kelly, J.H.O.), enteredNovember 17, 2008 in a proceeding pursuant to Family Court Act article 6. The order granted theparties joint child custody.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent mother appeals from an order that, inter alia, denied her cross petitionseeking primary physical custody of the parties' child and continued the existing award of primaryphysical custody with petitioner father. That arrangement had been in place for over a year prior to theinstant proceeding. It is well settled that a prior custody award arrangement "should be changed basedonly upon countervailing circumstances on consideration of the totality of circumstances" (Fox vFox, 177 AD2d 209, 210-211 [1992] [internal quotation marks omitted]), and we conclude thatthe mother failed to establish the requisite countervailing circumstances to warrant such a change. Thechild had been involved in early intervention based on cognitive and physical limitations, and he was tobe a full-time student in the upcoming academic year. Although the prior custody order specified thatthe change in schooling could constitute a change in circumstances warranting modification of the priorcustody arrangement, it further specified that the decisive factor would be whether the modificationwould serve the best interests of the child. We conclude on the record before us that there is a soundand substantial basis in the record to support Family Court's determination that the child's best interestswould be served by continuing primary physical custody with the father (see generally Matter ofGreen v Mitchell, 266 AD2d 884 [1999]). Finally, contrary to the contention of the mother, thepresence of half siblings of the child in her home is not dispositive, although it is a factor to beconsidered in making custody determinations (see Eschbach v Eschbach, 56 NY2d 167, 173[1982]). Here, however, "both parties have other children, [and thus] an award of custody to eitherparty would necessarily separate the child at issue from some of [his] siblings" (Matter of Brown vMarr, 23 AD3d [*2]1029, 1030 [2005]). Present—Fahey,J.P., Carni, Lindley, Green and Gorski, JJ.