Calendar Date: October 10, 2017
S. Cohen, Johnson City, for appellant.
Daniel Casella, Binghamton, for respondent.
Michelle E. Stone, Vestal, attorney for the child.
Before: Peters, P.J., Garry, Mulvey, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
from an order of the Family Court of Broome County
(Connerton, J.), entered February 2, 2016, which dismissed
petitioner's application, in a proceeding pursuant to
Family Ct Act article 6, to modify a prior order of custody
(hereinafter the mother) and respondent (hereinafter the
father) are the unmarried parents of a son (born in 2012). In
September 2012, while the father was deployed overseas, he
began receiving emails from the mother wherein she expressed
signs of depression and suicidal thoughts. Upon returning
home, the father filed an emergency petition for sole custody
of the child, which was granted. In 2014, Family Court
ordered sole custody to remain with the father and provided
the mother with a visitation schedule. The mother filed a
modification petition in September 2015, seeking joint
custody of the children with primary residence to her. Family
Court dismissed the mother's application, keeping sole
custody with the father, but expanding the mother's
visitation time. The mother now appeals.
party petitioning to modify a custody order bears the burden
of demonstrating first, that there has been a change in
circumstances since the prior order and, then, if such a
change occurred, that the best interests of the child would
be served by a modification of that order" (Matter
of David ZZ. v Suzane A., 152 A.D.3d 880, 881 
[internal quotation marks and citations omitted]). Although
Family Court did not make a finding of change in
circumstances, this Court, nonetheless, has "the
authority to independently review the record to determine
whether such circumstances existed" (Matter of Rohde
v Rohde, 135 A.D.3d 1011, 1012-1013 ). The
testimony established that, since the last order, the child
has developed significant dental needs that have not been
addressed by the father, and the child has been bitten by the
father's dog. The mother has also become mentally stable
in that she does not take prescription medications or discuss
suicide. This testimony, combined with testimony that evinced
a breakdown in meaningful communication between the parties,
established a change in circumstances (see Matter of
Richard Y. v Vanessa Z., 146 A.D.3d 1050, 1050-1051
; Matter of Paul A. v Shaundell LL., 117
A.D.3d 1346, 1348 , lv denied and dismissed 24
N.Y.3d 937 ).
mother established a change in circumstances, the inquiry
turns to whether there is a sound and substantial basis in
the record for concluding that it is in the child's best
interest to remain with the father. "In determining what
modification of an existing custody order, if any, would best
promote a child's interests, courts consider, among other
factors, the child's need for stability, the parents'
respective home environments, the length of the existing
custody arrangement, past parenting performances and each
parent's relative fitness, willingness to foster a
positive relationship with the other parent and ability to
provide for the child's intellectual and emotional
development" (Matter of Angela N. v Guy O., 144
A.D.3d 1343, 1345  [citations omitted]; see Matter
of Chris X. v Jeanette Y., 124 A.D.3d 1013, 1014
). At the time the petition was filed, the mother and
the father were both employed and owned suitable homes for
the child and, therefore, both possessed "sufficient
resources to meet the child's basic needs"
(Matter of Colleen GG. v Richard HH., 135 A.D.3d
1005, 1007 ). Moreover, the mother is experiencing
improved mental health and, in the opinion of her therapist,
is capable of having custody of the child. Nonetheless, the
child has resided with the father since shortly after birth.
The child's paternal grandparents live next door and
often help the father provide child care. Although the record
reveals that the child has been bitten by the father's
dog and has significant dental needs, testimony revealed that
the father has taken steps to address these situations.
Family Court found that the child is in a stable and loving
environment with his father and paternal grandparents and
that he is doing well in the home; therefore, it saw no
reason to uproot the child beyond the mother's desire to
do so. While the mother testified that she was seeking joint
custody, the record is clear that this would not be
appropriate based upon the difficulty the parties have
communicating with one another, as the testimony established
that they do not speak to one another, communicating solely
through email. Accordingly, we defer to Family Court's
factual findings and credibility assessments, and, as there
is a sound and substantial basis in the record to support the
court's continued grant of sole custody to the father, we
affirm (see Matter of Emmanuel SS. v Thera SS., 152
A.D.3d 900, 902 ; Matter of Basden v Faison,
141 A.D.3d 910, 911 ).
Peters, P.J., Garry, Mulvey and ...