| Matter of Walker v Cameron |
| 2011 NY Slip Op 07119 [88 AD3d 1307] |
| October 7, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Antwan Walker, Respondent, v Jamika Cameron,Appellant. |
—[*1] Rebecca J. Talmud, Attorney for the Child, Williamsville, for Antwan E.W., Jr. Melissa A. Cavagnaro, Attorney for the Child, Buffalo, for Diamond S.W.
Appeal from an order of the Family Court, Erie County (Sharon M. LoVallo, A.J.), enteredDecember 16, 2010 in a proceeding pursuant to Family Court Act article 6. The order, inter alia,granted primary physical custody of the parties' children 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: Respondent mother appeals from an order that, inter alia, granted the petitionseeking to modify the custody and visitation provisions of the judgment of divorce by awardingprimary physical custody of the parties' children to petitioner father. We note at the outset that themother failed to include in the record on appeal the judgment of divorce. "Although [such an]'omission . . . ordinarily would result in dismissal of the appeal . . . ,there is no dispute' " concerning the custody provisions contained in the judgment, and wetherefore reach the merits (Matter ofCarey v Windover, 85 AD3d 1574, 1574 [2011]; see Matter of Dann v Dann, 51 AD3d 1345, 1346-1347 [2008]).
We agree with the mother that Family Court erred in awarding primary physical custody ofthe parties' children to the father. Even assuming, arguendo, that the father made " 'a sufficientevidentiary showing of a change in circumstances to require a hearing on the issue whether theexisting custody [provisions] should be modified' " (Matter of Hughes v Davis, 68 AD3d 1674, 1675 [2009]), wenevertheless conclude that it is in the best interests of the children for primary physical custody toremain with the mother (see generally Matter of Louise E.S. v W. Stephen S., 64 NY2d946, 947 [1985]). The record establishes that the mother has been the children's primarycaregiver throughout their lives (seeSitts v Sitts, 74 AD3d 1722, 1723 [2010]). In addition, the record establishes that thechildren have a close relationship with the half sibling residing in the mother's home. Although"the presence of [a] half sibling[ ] . . . is not dispositive, . . . it is afactor to be considered in making custody determinations" (Matter of Slade v Hosack, 77 AD3d 1409 [2010]; see Eschbachv Eschbach, 56 NY2d 167, 173 [1982]). We therefore reverse the order and dismiss [*2]the petition. Present—Fahey, J.P., Peradotto, Lindley,Sconiers and Green, JJ.