| Matter of Graves v Stockigt |
| 2010 NY Slip Op 08813 [79 AD3d 1170] |
| December 2, 2010 |
| Appellate Division, Third Department |
| In the Matter of Darrylle S. Graves, Respondent, v Melissa J. Stockigt,Appellant. |
—[*1] Margaret McCarthy, Ithaca, for respondent. Allen E. Stone Jr., Vestal, attorney for the child.
Cardona, P.J. Appeal from an order of the Family Court of Tioga County (Sgueglia, J.), enteredMarch 17, 2009, which granted petitioner's application, in a proceeding pursuant to Family Ct Actarticle 6, to modify a prior order of custody.
Pursuant to a January 2008 amended order, petitioner (hereinafter the father) and respondent(hereinafter the mother) shared joint custody of their son (born in 2004), with the mother havingprimary physical custody. In July 2008, the father commenced this modification proceeding seeking,among other things, sole custody as well as an order directing that the child's stepfather have no contactwith the child during visitation with the mother. In the interim, the father was awarded temporarycustody with the directive that the stepfather have no contact with the child during the mother'svisitations. Following a two-day fact-finding hearing, Family Court found a sufficient change incircumstances and granted the father's petition for sole custody, prompting this appeal.
A petitioner seeking to modify an existing custody order must demonstrate a "sufficient change incircumstances reflecting a real need for change in order to insure the continued best interest of the child"(Matter of Rue v Carpenter, 69 AD3d1238, 1239 [2010] [internal quotation marks and citation omitted]; see Matter of Arieda v Arieda-Walek, 74AD3d 1432, 1433 [2010]). [*2]Here, for the reasons that follow,and according due deference to Family Court's assessment of witness credibility, we find that a soundand substantial basis in the record exists to support the court's determination that such a change incircumstances occurred to warrant a change in custody (see Matter of Colwell v Parks, 44 AD3d 1134, 1135-1136 [2007]).
Specifically, recent indicated Child Protective Services reports against the mother established herlack of supervision and inadequate guardianship of the child. Furthermore, at the time the petition wasfiled, the mother was being evicted from her home, the conditions of which were unsanitary and unsafeparticularly with respect to the area outside the home. In addition, despite the child's asthmaticcondition as well as a restriction in the prior custody order prohibiting smoking around the child, themother's home smelled of smoke. Evidence in the record indicates that the child did not receive his dailyasthma medicine when in the mother's custody. Moreover, testimony at the hearing tends to support theallegations that the stepfather was abusive toward the child and the mother. Significantly, despite thecourt's directive, the stepfather had contact with the child while visiting with the mother during thependency of this proceeding. The father, on the other hand, maintains a stable living situation andresides at his parents' home. The paternal grandmother testified regarding her efforts to keep the homeclean to accommodate the child's asthmatic condition. Furthermore, while in the father's care, the childconsistently receives his asthma medication.
Finally, the mother's contention that Family Court abused its discretion in not conducting aLincoln hearing is unpersuasive, particularly given the young age of the child (see Matter of Lopez v Robinson, 25 AD3d1034, 1037 [2006]; Matter of Farnham v Farnham, 252 AD2d 675, 677 [1998]). Wehave reviewed the mother's remaining contentions and find them to be unpersuasive.
Although not raised by the parties, we deem it appropriate under the circumstances herein tomodify Family Court's order to the extent of directing that each parent continue to have completeaccess to all of the child's medical records and/or school records.
Mercure, Lahtinen, Stein and Garry, JJ., concur. Ordered that the order is modified, on the facts,without costs, by directing that each parent continue to have complete access to all of the child'smedical records and/or school records, and, as so modified, affirmed.