SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
November 16, 2012
IN THE MATTER OF JOSHUA BURRELL, PETITIONER-RESPONDENT,
ANGELA D. BURRELL, RESPONDENT-APPELLANT.
Appeal from an order of the Family Court, Steuben County (Peter C. Bradstreet, J.), entered July 8, 2011 in a proceeding pursuant to Family Court Act article 6.
Matter of Matter of Burrell v Burrell
Released on November 16, 2012
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO, AND MARTOCHE, JJ.
The order, among other things, 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 primary physical custody of the parties' child. We
agree with Family Court that the father established the requisite
change in circumstances to warrant an inquiry into whether the best
interests of the child would be served by modifying the existing
custody arrangement (see Matter of Simonds v Kirkland, 67 AD3d 1481,
1482). The father established that the mother left the child without
adult supervision on several occasions late at night while she ran
errands and that the child had indicated to both parents that she had
been touched sexually or otherwise inappropriately by her half
brother. Although we note that the statement of the child to her
parents that she was touched sexually or otherwise inappropriately by
her half brother was not corroborated (cf. Matter of Nikki O. v
William N., 64 AD3d 938, 938-939, lv dismissed 13 NY3d 825), the
mother admitted that, 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
ran errands, coupled with the child's statement of the touching by the
half brother, constituted the necessary change in circumstances. We
further conclude that the court properly considered the totality of
the circumstances in determining that it was in the best interests of
the child for the father to have primary physical custody (see
generally Eschbach v Eschbach, 56 NY2d 167, 171-174; Matter of
Brothers v Chapman, 83 AD3d 1598, 1598-1599, lv denied 17 NY3d 707).
Entered: November 16, 2012 Frances E. Cafarell Clerk of the Court
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