| Matter of Carey v Windover |
| 2011 NY Slip Op 04858 [85 AD3d 1574] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of James R. Carey, Respondent, v Sarah L. Windover,Appellant. In the Matter of Sarah L. Windover, Appellant, v James R. Carey,Respondent. |
—[*1] William H. Getman, Waterville, for petitioner-respondent and respondent-respondent.Doreen M. St. Thomas, Attorney for the Children, Clark Mills, for Ioanna C. and ShayaC.
Appeal from an order of the Family Court, Oneida County (John E. Flemma, J.H.O.), enteredDecember 22, 2009 in proceedings pursuant to Family Court Act articles 6 and 8. The order,among other things, transferred physical custody of the parties' children to petitioner-respondent,James R. Carey.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent-petitioner mother appeals from an order that, inter alia, grantedthe petition of petitioner-respondent father seeking to modify the prior order of custody byawarding him primary physical custody of the parties' children and dismissed the mother's familyoffense petition. We affirm. We note at the outset that the mother failed to include in the recordon appeal the prior order awarding her primary physical custody of the children and visitation tothe father. Although "omission from the record on appeal of the order sought to be modifiedordinarily would result in dismissal of the appeal [with respect to that order] . . . ,there is no dispute [concerning] the access awarded [the mother] under the prior order and, assuch, we elect to reach the merits" (Matter of Dann v Dann, 51 AD3d 1345, 1346-1347 [2008]).
We reject the mother's contention that Family Court erred in determining that the father [*2]established the requisite change in circumstances to warrantmodification of the existing custody arrangement. " 'It is well established that alteration of anestablished custody arrangement will be ordered only upon a showing of a change incircumstances [that] reflects a real need for change to ensure the best interest[s] of the child' "(Matter of Amy L.M. v Kevin M.M., 31 AD3d 1224, 1225 [2006]; see Matter of Chrysler v Fabian, 66AD3d 1446 [2009], lv denied 13 NY3d 715 [2010]). We conclude that the fathermet that burden by introducing evidence establishing that the mother moved four times in theyear prior to the filing of his petition and that she sometimes stayed in a residence for only two orthree weeks (see Matter of Moore vMoore, 78 AD3d 1630 [2010], lv denied 16 NY3d 704 [2011]). Furthermore,the father presented evidence, including testimony from a court-appointed special advocate,establishing that the conditions in the mother's new residence were not suitable for the children.In contrast, the evidence in the record establishes that the father had a stable residence withappropriate beds for the children, and he was fully employed. Consequently, "according duedeference to [the c]ourt's assessment of witness credibility" (Matter of Graves v Stockigt, 79 AD3d 1170, 1171 [2010]), weconclude that the court's determination to award primary physical custody of the children to thefather is supported by a sound and substantial basis in the record and will not be disturbed (see Matter of McLeod v McLeod, 59AD3d 1011 [2009]).
We have considered the mother's remaining contention and conclude that it is without merit.Present—Smith, J.P., Peradotto, Carni, Sconiers and Martoche, JJ.