SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1055 

CAF 13-01255 

PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DEJOSEPH, JJ. 

 

IN THE MATTER OF SONYA GELSTER, 

PETITIONER-APPELLANT, 

V MEMORANDUM AND ORDER

TERRY BURNS, RESPONDENT-RESPONDENT. 

(APPEAL NO. 1.) 

 

DENIS A. KITCHEN, WILLIAMSVILLE, FOR PETITIONER-APPELLANT. 

DOMINIC PAUL CANDINO, BUFFALO (JASON C. HENSKEE OF COUNSEL), FOR

RESPONDENT-RESPONDENT. 

MARY ANNE CONNELL, ATTORNEY FOR THE CHILD, BUFFALO. 

 

Appeal from an order of the Family Court, Erie County (Paul G.

Buchanan, J.), entered June 21, 2013 in a proceeding pursuant to

Family Court Act article 6. The order dismissed the petition of Sonya

Gelster for modification of an order of custody and visitation. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: In appeal No. 1, Sonya Gelster, the petitioner in

appeal No. 1 and the respondent in appeal No. 2 (hereafter, mother),

appeals from an order granting the motion of Terry Burns, the

respondent in appeal No. 1 and the petitioner in appeal No. 2

(hereafter, father), to dismiss her petition at the close of her

proof. In her petition, the mother sought to modify a prior consent

order, pursuant to which the parties had joint custody of the parties’

son and the father had primary physical placement of him, by granting

sole custody of the parties’ son to her. In appeal No. 2, the mother

appeals from an order granting the father’s petition seeking to modify

the prior consent order by granting sole custody to him. 

We agree with the mother in appeal No. 1 that Family Court erred

in dismissing the petition at that juncture of the proceeding. 

“Where, as here, ‘a respondent moves to dismiss a modification

proceeding at the conclusion of the petitioner’s proof, the court must

accept as true the petitioner’s proof and afford the petitioner every

favorable inference that could be reasonably drawn therefrom’ ”

(Matter of Walters v Francisco, 63 AD3d 1610, 1611). Accepting the

mother’s proof as true, we conclude that she established that she

successfully completed a substance abuse program and thus, in
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CAF 13-01255 

accordance with a provision in the prior consent order, she satisfied

the requisite significant change of circumstances to permit the court

to consider whether a change of custody is in the best interests of

the child (see generally Matter of Moore v Moore, 78 AD3d 1630, 1630-

1631, lv denied 16 NY3d 704). Further, the mother and the child’s

maternal grandmother testified with respect to, inter alia, the marked

change in the child’s demeanor and behavior since residing with the

father, and the mother presented evidence of a significant bruise on

the child’s back, which she believed was inconsistent with the child’s

explanation for the bruise. We therefore conclude that the court

erred in failing to “ ‘afford the [mother] every favorable inference

that could be reasonably drawn’ ” from the evidence presented by her

(Walters, 63 AD3d at 1611).

Although the court erred in granting the father’s motion to

dismiss at the close of the mother’s proof, here, the father presented

evidence, on his petition, that refuted the mother’s evidence, and the

mother had an opportunity to cross-examine the father’s witnesses (cf.

Matter of David WW. v Laureen QQ., 42 AD3d 685, 686). “ ‘Our

authority in determinations of custody is as broad as that of Family

Court’ ” (Matter of Howell v Lovell, 103 AD3d 1229, 1231) and, based

upon our review of the entire record, we conclude that the mother

failed to establish that it was in the best interests of the child to

award sole custody to her (see generally Matter of Brandyn P., 278

AD2d 533, 535). The father presented evidence that the mother had

made numerous unfounded reports of alleged physical abuse of the child

both to Child Protective Services and to the police. The father also

presented evidence from a neighbor, who is a mandated reporter and who

had a close relationship with the child, regarding the child’s

demeanor and behavior while living at the father’s house. We

therefore affirm the order denying the mother’s petition in appeal No.

1.

We likewise affirm the order in appeal No. 2. The father

testified that the parties are unable to communicate without acrimony,

and that they communicate only through the maternal grandmother, or by

letters carried by the child, or by counsel. The father’s evidence

mirrored the mother’s evidence in that respect. Thus, the record

supports the court’s determination in appeal No. 2 that the

acrimonious relationship of the parties warranted a change from joint

custody to sole custody and that the best interests of the child would

be served by awarding sole custody to the father (see Matter of

Leonard v Leonard, 109 AD3d 126, 128; Matter of Dube v Dube, 259 AD2d

1041, 1041). We have reviewed the mother’s remaining contention in

appeal No. 2 and conclude that it is without merit. 

Entered: November 14, 2014 Frances E. Cafarell

Clerk of the Court