| Matter of Messimore v Messimore |
| 2011 NY Slip Op 08433 [89 AD3d 1547] |
| November 18, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Howard G. Messimore, Appellant, v Stacy M.Messimore, Respondent. |
—[*1] Tyson Blue, Canandaigua, for respondent-respondent. Susan A. Sovie, Attorney for the Child, Watertown, for Nataleigh M.M.
Appeal from an order of the Family Court, Jefferson County (Richard V. Hunt, J.), enteredSeptember 9, 2010 in a proceeding pursuant to Family Court Act article 6. The order, among otherthings, ordered that respondent is to have primary physical custody of the subject child.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner father commenced this proceeding seeking to modify the existing custodyprovisions in the judgment of divorce, which was entered while he was deployed overseas with theUnited States Army, by awarding him primary physical custody of the parties' child. We agree with thefather that his return from deployment constituted a change in circumstances warranting review of theexisting custody arrangement (see Family Ct Act § 651 [f] [3]). Contrary to the father'scontention, however, we conclude that Family Court did undertake such a review in light of the changein circumstances. The court held an evidentiary hearing, during which witnesses were called by bothparties, conducted an in camera interview with the parties' child and thereafter made a determinationbased upon the best interests of the child (cf.Matter of Hughes v Davis, 68 AD3d 1674 [2009]). Contrary to the further contention of thefather, we conclude that the court's determination that the best interests of the child are served bycontinuing primary physical custody with respondent mother is supported by a sound and substantialbasis in the record (see Matter of McLeod vMcLeod, 59 AD3d 1011 [2009]). Present—Scudder, P.J., Carni, Lindley, Sconiersand Green, JJ.