SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

314 

CAF 11-00445 

PRESENT: SCUDDER, P.J., SMITH, CARNI, AND SCONIERS, JJ. 

 

IN THE MATTER OF CINDY C. STILSON, 

PETITIONER-RESPONDENT-APPELLANT, 

 

V MEMORANDUM AND ORDER

DAVID R. STILSON, SR.,

RESPONDENT-PETITIONER-RESPONDENT.

 

DAVID J. PAJAK, ALDEN, FOR PETITIONER-RESPONDENT-APPELLANT.

BENNETT, DIFILIPPO & KURTZHALTS, LLP, EAST AURORA (MAURA C. SEIBOLD OF

COUNSEL), FOR RESPONDENT-PETITIONER-RESPONDENT. 

DAVID C. BRAUTIGAM, ATTORNEY FOR THE CHILD, HOUGHTON, FOR DAVID R.S.,

II.

 

Appeal from an order of the Family Court, Allegany County (Lynn

L. Hartley, J.H.O.), entered January 3, 2011 in a proceeding pursuant

to Family Court Act article 6. The order granted respondentpetitioner primary physical custody of the parties’ child. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Petitioner-respondent mother commenced this

proceeding seeking to modify a prior order of custody and visitation. 

She appeals from an order that, following a hearing, granted

respondent-petitioner father’s cross petition by awarding him primary

physical custody of the parties’ child, with visitation to the mother. 

Contrary to the mother’s contention, Family Court properly granted the

cross petition.

“The mother . . . failed to preserve for our review her

contention that the father failed to establish a change of

circumstances warranting review of the prior order” (Matter of

Canfield v McCree, 90 AD3d 1653, 1654; see Matter of Deegan v Deegan,

35 AD3d 736). Indeed, in her petition, the mother alleged that there

had been such a change of circumstances. In any event, the mother is

correct that, “ ‘[w]here an order of custody and visitation is entered

on stipulation, a court cannot modify that order unless a sufficient

change in circumstances—since the time of the stipulation—has been

established, and then only where a modification would be in the best

interests of the child[ ]’ ” (Matter of Donnelly v Donnelly, 55 AD3d

1373). Here, we conclude that there was a sufficient showing of
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CAF 11-00445 

changed circumstances based, inter alia, upon the parties’ inability

to reach an agreement regarding certain aspects of the child’s

visitation schedule, and upon the changes in the child’s school

schedule since the entry of the prior order (see generally Matter of

Claflin v Giamporcaro, 75 AD3d 778, 779-780, lv denied 15 NY3d 710;

Matter of Schimmel v Schimmel, 262 AD2d 990, lv denied 93 NY2d 817). 

Moreover, contrary to the mother’s further contention, the court

properly determined that it was in the child’s best interests to award

the father primary physical custody of the child. “ ‘Generally, a

court’s determination regarding custody and visitation issues, based

upon a first-hand assessment of the credibility of the witnesses after

an evidentiary hearing, is entitled to great weight and will not be

set aside unless it lacks an evidentiary basis in the record’ ”

(Matter of Dubuque v Bremiller, 79 AD3d 1743, 1744). Here, the

court’s determination is supported by the requisite “sound and

substantial basis in the record” and thus will not be disturbed (id.). 

We agree with the court’s conclusion that, although both parties

appear to be fit and loving parents, the evidence presented at the

hearing establishes that the father is better able to provide for the

child’s educational and medical needs.

Entered: March 16, 2012 Frances E. Cafarell

Clerk of the Court