State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 5, 2017 522356 

_________________________________

In the Matter of RICHARD Y.,

Respondent,

v

VANESSA Z., MEMORANDUM AND ORDER

Appellant.

(And Another Related Proceeding.)

_________________________________

Calendar Date: November 22, 2016

Before: Garry, J.P., Egan Jr., Rose, Clark and Mulvey, JJ.

__________

Lawrence Brown, Bridgeport, for appellant.

Christopher Hammond, Cooperstown, for respondent.

Marion J. Cerio, Canastota, attorney for the children.

__________

Rose, J.

Appeal from an order of the Family Court of Madison County

(McDermott, J.), entered December 28, 2015, which, among other

things, granted petitioner's application, in a 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 the unmarried parents of a son (born

in 2004) and a daughter (born in 2005). Pursuant to a stipulated

custody order entered in 2010, the mother was awarded sole legal

and physical custody of the children and the father was provided

with a schedule of visitation. In 2014, the father commenced the
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first of these modification proceedings seeking sole legal and

physical custody of the children, alleging, among other things,

that the mother and children had been "kicked out" of a domestic

violence shelter and that the children had not been to school in

two to four weeks. Thereafter, the mother commenced the second

of these proceedings seeking to modify the transportation

arrangement concerning the father's visitation time. Following a

fact-finding hearing, Family Court awarded sole legal and

physical custody to the father and visitation to the mother. The

mother now appeals.

We are unpersuaded by the mother's contention that the

father failed to establish a change in circumstances warranting a

review of the children's best interests. The father's proof

established that, since the entry of the prior order, the mother

had left an abusive relationship, moved into a shelter with the

children and was subsequently asked to leave the shelter when she

was allegedly caught visiting the abusive ex-boyfriend. The

mother then moved in with a new boyfriend, resulting in the

children moving to a new school district and missing

approximately three weeks of school. In addition, the son found

marihuana in the new boyfriend's jacket, and the father's

attempts to address other issues concerning the new boyfriend's

behavior toward the children have been met with consistent

denials by the mother. This proof, coupled with evidence of a

breakdown of meaningful communication between the parties,

established a change in circumstances warranting an inquiry into

the best interests of the children (see Matter of Paul A. v

Shaundell LL., 117 AD3d 1346, 1348 [2014], lv dismissed and

denied 24 NY3d 937 [2014]; Matter of Gasparro v Edwards, 85 AD3d

1222, 1223 [2011]).

In reviewing Family Court's custody determination, we

accord great deference to its factual findings and assessments of

credibility, "and we will not disturb its determination unless it

lacks a sound and substantial basis in the record" (Matter of

Williams v Patinka, 144 AD3d 1432, 1433-1434 [2016] [internal

quotation marks and citation omitted]; see Matter of Bradley D. v

Andrea D., 144 AD3d 1417, 1419 [2016]; Matter of Burnett v

Andrews-Dyke, 140 AD3d 1346, 1348 [2016]). The evidence adduced

at the fact-finding hearing established that, despite being
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previously subject to a neglect proceeding regarding unsanitary

living conditions and engaging in domestic violence in the

children's presence, the mother continues to have contact with

her abusive ex-boyfriend and recently allowed maggots to fester

on unwashed dishes in her home. In addition, the daughter has

had repeated bouts with head lice, and Family Court found that

this problem likely stems from the mother's unsanitary home. As

for her living situation, the mother had been seeing the new

boyfriend for only a very brief period of time before she moved

herself and the children in with him and, by all accounts, he is

an unemployed alcoholic who continues to consume alcohol, suffers

from seizures and smokes marihuana on a daily basis. Despite

this, and because the mother is away at work for long periods of

time, she leaves the children in his care. Significantly, the

children have had conflicts with the new boyfriend and, after

becoming upset with the son, the boyfriend threatened to evict

the mother and the children from his home. In addition, the

mother admitted that the children have seen her and the new

boyfriend nude on the living room couch after they engaged in

"adult time."

Although the father has his own share of shortcomings, the

record amply reflects that he is more able to provide a

nurturing, safe and stable home environment for the children. 

Further, we reject the mother's contention that Family Court

placed too much weight on the position of the attorney for the

children in favor of transferring custody to the father (see

Matter of Colona v Colona, 125 AD3d 1123, 1126 [2015]). Thus,

after according the appropriate deference to Family Court, we

conclude that the determination to award the father sole legal

and physical custody is supported by a sound and substantial

basis in the record (see Matter of Pena v Lopez, 140 AD3d 967,

968-969 [2016]; Matter of Colona v Colona, 125 AD3d at 1126).

Garry, J.P., Egan Jr., Clark and Mulvey, JJ., concur.
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ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court