| Matter of York v Zullich |
| 2011 NY Slip Op 08017 [89 AD3d 1447] |
| November 10, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of John York, Appellant, v Adrianna Zullich, Respondent.In the Matter of Adrianna Zullich, Respondent, v John York,Appellant. |
—[*1] Susan P. Reinecke, Clarence, for respondent-respondent and petitioner-respondent. Mary AnneConnell, Attorney for the Child, Buffalo, for Emma Z.
Appeal from an amended order of the Family Court, Erie County (Sharon M. LoVallo, A.J.),entered February 17, 2010 in a proceeding pursuant to Family Court Act article 6. The amendedorder, inter alia, granted sole custody of the parties' child to Adrianna Zullich.
It is hereby ordered that the amended order so appealed from is unanimously affirmed withoutcosts.
Memorandum: Petitioner-respondent father appeals from an amended order that, inter alia, grantedthe petition of respondent-petitioner mother seeking to modify a prior custody order entered upon theconsent of the parties by awarding her sole custody of the parties' child, with visitation to the father andsupervised contact with the stepfather. We affirm. Contrary to the father's contention, we conclude thatthe mother met her burden of establishing a change in circumstances sufficient to warrant an inquiry intowhether the best interests of the child warranted a change in custody (see Matter of Maher v Maher, 1 AD3d987, 988 [2003]). Under the prior consent order, the parties shared residential custody of thechild, with the days that the child spent with each parent changing on a weekly basis. That schedulecreated confusion on the part of the child and school officials and was no longer practical upon thechild's attainment of school age (see Matter ofDickerson v Robenstein, 68 AD3d 1179, 1179-1180 [2009]; see also Matter of Claflin v Giamporcaro,75 AD3d 778, 779-780 [2010], lv denied 15 NY3d 710 [2010]). In addition, thedeterioration of the parties' relationship and their inability to coparent renders the existing joint custody[*2]arrangement unworkable (see Matter of Ingersoll v Platt, 72 AD3d 1560, 1561 [2010]; Matterof Francisco v Francisco, 298 AD2d 925 [2002], lv denied 99 NY2d 504 [2002];Matter of Thayer v Ennis, 292 AD2d 824 [2002]). The father does not challenge the merits ofFamily Court's determination that the child's best interests are served by an award of sole custody tothe mother.
The father contends for the first time on appeal that the court should have dismissed both his ownpetition and that of the mother based on their failure to mediate and thus that contention is notpreserved for our review (see generallyMatter of Moore v Shapiro, 30 AD3d 1054 [2006]). In any event, that contention is withoutmerit. The father likewise failed to preserve for our review his contention that the court erred inprecluding testimony concerning the "Abel test" administered to the stepfather or in failing to hold aFrye hearing with respect to the admissibility of testimony concerning that test. When thefather's attorney informed the court on the date scheduled for the Frye hearing that he was notprepared to proceed and requested an adjournment, the court ruled that it would entertain a motion toreschedule the Frye hearing in the event that motion papers seeking that relief were submittedby a specified date. The record contains no such motion papers and thus the father failed to preservefor our review his contention that the court should have conducted a Frye hearing to determinethe admissibility of evidence concerning the "Abel test" before precluding such evidence (see generally Matter of Thillman v Mayer,85 AD3d 1624, 1625 [2011]). Present—Peradotto, J.P., Carni, Lindley, Sconiers andGreen, JJ.