| Matter of Burrell v Burrell |
| 2012 NY Slip Op 07826 [100 AD3d 1545] |
| November 16, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of Joshua Burrell, Respondent, v Angela D.Burrell, Appellant. |
—[*1] Culley, Marks, Tanenbaum & Pezzulo, LLP, Rochester (Jon E. Bonavilla of counsel), forpetitioner-respondent. Wendy S. Sisson, Attorney for the Child, Geneseo, for Brianna b.
Appeal from an order of the Family Court, Steuben County (Peter C. Bradstreet, J.), enteredJuly 8, 2011 in a proceeding pursuant to Family Court Act article 6. The order, among otherthings, awarded petitioner primary physical custody of the subject child.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent mother appeals from an order awarding petitioner father primaryphysical custody of the parties' child. We agree with Family Court that the father established therequisite change in circumstances to warrant an inquiry into whether the best interests of thechild would be served by modifying the existing custody arrangement (see Matter of Simonds v Kirkland, 67AD3d 1481, 1482 [2009]). The father established that the mother left the child without adultsupervision on several occasions late at night while she ran errands and that the child hadindicated to both parents that she had been touched sexually or otherwise inappropriately by herhalf brother. Although we note that the statement of the child to her parents that she was touchedsexually or otherwise inappropriately by her half brother was not corroborated (cf. Matter of Nikki O. v William N., 64AD3d 938, 938-939 [2009], lv dismissed 13 NY3d 825 [2009]), the mother admittedthat, upon hearing that statement, she enrolled the child's half brother in counseling. In our view,the mother's conduct in leaving the child without adult supervision late at night while she ranerrands, coupled with the child's statement of the touching by the half brother, constituted thenecessary change in circumstances. We further conclude that the court properly considered thetotality of the circumstances in determining that it was in the best interests of the child for thefather to have primary physical custody (see generally Eschbach v Eschbach, 56 NY2d167, 171-174 [1982]; Matter of Brothersv Chapman, 83 AD3d 1598, 1598-1599 [2011], lv denied 17 NY3d 707 [2011]).Present—Scudder, P.J., Fahey, Carni, Valentino and Martoche, JJ.