| Matter of Hayward v Campbell |
| 2013 NY Slip Op 01583 [104 AD3d 1000] |
| March 14, 2013 |
| Appellate Division, Third Department |
| In the Matter of Jonathan M. Hayward,Appellant, v Megan D. Campbell, Respondent. |
—[*1] Linda L. Cooper, Binghamton, for respondent. Edward Waples, Binghamton, attorney for the child.
McCarthy, J. Appeal from an order of the Family Court of Broome County(Connerton, J.), entered November 15, 2011, which dismissed petitioner's application, ina proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are theparents of one child (born in 2008). In 2009, the parties were granted joint custody, withprimary custody to the mother and weekly visitation with the father from Thursday untilSunday. In January 2011, the mother was granted sole custody of the child, with thefather's visitation remaining the same. Shortly thereafter, in May 2011, the fathercommenced this proceeding seeking custody of the child. Following a hearing, FamilyCourt dismissed the father's petition and he now appeals.
"[B]efore a court may modify a prior custody order, the petitioner must demonstrate,first, a change in circumstances occurring after issuance of the order sought to bemodified and, second, that modification of the previous order is necessary to ensure thechild[ ]'s best interests" (Matterof Ildefonso v Brooker, 94 AD3d 1344, 1344 [2012]; see Matter of Hamilton vAnderson, 99 AD3d 1077, 1078 [2012]). Here, the evidence of instability in themother's living arrangements—she moved four times in the 10 months followingthe issuance of the prior order, [*2]living with twodifferent boyfriends and another friend during this time—supports the existence ofthe requisite change in circumstances warranting a consideration of the child's bestinterests (see Matter of Starkeyv Ferguson, 80 AD3d 799, 801 [2011]).
"In evaluating the best interests of the child, a court must consider numerous factors,including the quality of each parent's home environments, their past performance andstability, and each parent's relative fitness and ability to provide for the child's intellectualand emotional development" (Matter of Calandresa v Calandresa, 62 AD3d 1055, 1056[2009]; accord Matter of Coleyv Sylva, 95 AD3d 1461, 1462 [2012]). Here, the record supports Family Court'sdetermination that both parents were similarly situated regarding the quality and stabilityof their home lives. Both parents are reliant on family or friends for housing, with themother admitting to moving four times in the 10 months since the issuance of the priororder and the father testifying that he resides with his mother, stepfather and two siblings.The record also reflects that the police were called to the father's residence in August2011, after the father and his brother were involved in a fight, with the child present atthe house. The father also admitted that the police were involved regarding an altercationhe had with the mother's brother in June 2011, which resulted in an order of protectionbeing entered against the father.[FN*]Further, although the father presented testimony that the child was often unclean whenarriving from the mother's care and the mother had ignored a serious rash on the child'sbuttocks, the mother and her witness testified to the contrary regarding the child'shygiene, and the child's medical records reflect that the mother sought treatment for therash. According deference to Family Court's credibility determinations (see Matter of Timothy N. vGwendolyn N., 92 AD3d 1155, 1157 [2012]; Matter of Jeker v Weiss, 77AD3d 1069, 1070 [2010]), the record supports Family Court's determination that thefather did not meet his burden of demonstrating that a modification of the prior custodyorder is necessary to ensure the child's best interests.
Peters, P.J., Lahtinen and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: While the father'sconduct regarding the altercations in June 2011 and August 2011 was postpetition andmay not be considered when determining whether there was a change in circumstances,the conduct is relevant when determining the child's best interests (see Matter of Klee v Schill, 95AD3d 1599, 1601 n 4 [2012]).