| Matter of Brothers v Chapman |
| 2011 NY Slip Op 03484 [83 AD3d 1598] |
| April 29, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Jason L. Brothers, Respondent, v Heather L.Chapman, Appellant. |
—[*1] Anthony Casale, Gloversville, for petitioner-respondent.
Appeal from an order of the Family Court, Herkimer County (Anthony J. Garramone,J.H.O.), entered December 15, 2009 in a proceeding pursuant to Family Court Act article 6. Theorder, inter alia, granted the parties joint custody of their child and granted petitioner primaryphysical 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, granted in part thefather's cross petition seeking to modify a prior order of custody and visitation by awarding himprimary physical custody of the parties' child and visitation to the mother. "Although FamilyCourt erred in failing 'to set forth those facts essential to its decision' . . . , 'therecord is sufficiently complete for us to make our own findings of fact in the interests of judicialeconomy and the well-being of the child[ ]' " (Matter of Williams v Tucker, 2 AD3d 1366, 1367 [2003], lvdenied 2 NY3d 705 [2004]). Based on our review of the record, we conclude that the courtproperly modified the prior order of custody and visitation.
"It is well settled that '[a] party seeking a change in an established custody arrangement mustshow a change in circumstances [that] reflects a real need for change to ensure the best interest[s]of the child' " (Matter of Moore vMoore, 78 AD3d 1630, 1630 [2010], lv denied 16 NY3d 704 [2011]; see Matter of Maher v Maher, 1 AD3d987, 988-989 [2003]). "[A]mong the factors to consider in determining whether a change ofprimary physical custody is warranted are the quality of the home environment and the parentalguidance the custodial parent provides for the child . . . , the ability of each parentto provide for the child's emotional and intellectual development . . . , the financialstatus and ability of each parent to provide for the child . . . , the relative fitness ofthe respective parents, and the length of time the present custody arrangement has been in effect"(Matter of Kristi L.T. v AndrewR.V., 48 AD3d 1202, 1204 [2008], lv denied 10 NY3d 716 [2008] [internalquotation marks omitted]; see Maher, 1 AD3d at 989).
With respect to the first of those factors, including the quality of the home environment, theevidence presented at the hearing establishes that the mother has repeatedly changed residences.Indeed, on one occasion, the mother returned to and left her estranged husband within the periodof [*2]one weekend. Further, at the time of the hearing, themother resided with a paramour who, based on testimony presented at the hearing, has asignificant history of domestic violence and irrational behavior (see Matter of Stacey L.B. v KimberlyR.L., 12 AD3d 1124 [2004], lv denied 4 NY3d 704 [2005]). In contrast, theevidence adduced at the hearing established that the father had a stable home life.
With respect to the second factor, i.e., the ability of each parent to provide for the child'semotional and intellectual development, the record of the hearing established that the mother wascognizant of the need to improve her parenting skills inasmuch as she began attending parentingclasses approximately two months before the hearing. Her transient lifestyle, however, resulted inthe child attending three different schools within only a few years. Although we agree with thecourt that the father should take a greater role in the child's education, the record of the hearingestablished that he made arrangements for daycare and schooling in anticipation of obtainingphysical custody of the child, and he provided books and toys for the child, spent time playingwith him and took him to the park.
With respect to the third factor, i.e., the financial status and ability of each parent to providefor the child, the evidence presented at the hearing demonstrated that the father has a steadyincome. The evidence further demonstrated, however, that the mother had been unemployed forseveral years and that her income consisted only of public assistance.
With respect to the fourth factor, i.e., the relative fitness of the respective parents and thelength of time the present custody arrangement has been in effect, the evidence presented at thehearing established that the mother is a caring parent but that she is committed to living with aparamour she knows to be potentially dangerous and who has a history of domestic violence. Thefather, however, has provided a safe home environment for the child.
We further conclude that the mother failed to preserve for our review her contention that thecourt erred in considering certain police reports regarding her current paramour (see generally Matter of Matthews vMatthews, 72 AD3d 1631, 1632 [2010], lv denied 15 NY3d 704 [2010]). In anyevent, any such error is harmless inasmuch as we engaged in an independent review of the recordand did not rely on those reports in reaching our determination (see generally id.). Evenassuming, arguendo, that we agree with the mother that the court erred in considering certainprobation reports that were not admitted in evidence, we conclude that such error is also harmlessinasmuch as we did not consider those probation records in reaching our determination (seegenerally id.). Present—Centra, J.P., Fahey, Peradotto, Lindley and Sconiers, JJ.