Calendar Date: November 13, 2019
Law Center of New York, Castleton (Keith F. Schockmel of
counsel), for appellant.
Christopher Hammond, Cooperstown, for respondent.
K. Miller, McGraw, attorney for the child.
Before: Mulvey, J.P., Devine, Aarons and Pritzker, JJ.
from an order of the Family Court of Cortland County
(Campbell, J.), entered May 31, 2018, which partially
dismissed petitioner's application, in a proceeding
pursuant to Family Ct Act article 6, to modify a prior order
of custody and visitation.
(hereinafter the mother) and respondent (hereinafter the
father) are the parents of the subject child (born in 2013).
The mother's substance abuse and legal troubles resulted
in a December 2016 order, entered upon consent, that awarded
the father sole custody and physical placement of the child
and granted the mother periods of visitation to be supervised
by either of the mother's parents. The parties thereafter
filed several petitions, the only one of which relevant here
is the mother's July 2017 amended petition to modify the
December 2016 order. Family Court conducted a fact-finding
hearing and then issued an amended decision finding, among
other things, that the custodial arrangement should be
modified to expand the mother's parenting time and allow
some of it to be unsupervised. The mother appeals from the
ensuing order of custody and visitation. 
affirm. It is well settled that "[a] party seeking
modification of a prior order of custody must demonstrate
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 Richard GG. v
M. Carolyn GG., 169 A.D.3d 1169, 1170  [internal
quotation marks and citations omitted]; see Matter of
Thomas KK. v Anne JJ., 176 A.D.3d 1354, 1355 ). As
provided for in the December 2016 order, the mother's
substantial compliance with drug treatment for more than six
months constituted a change in circumstances. Family Court
accordingly proceeded to conduct a best interests analysis,
which involves the consideration of factors such as the past
performance and relative fitness of the parents, their
willingness to foster a positive relationship between the
child and the other parent, their fidelity to prior court
orders and their ability to both provide a stable home
environment and further the child's overall well-being
(see Matter of Kanya J. v Christopher K., 175 A.D.3d
760, 762 , lv denied ___ N.Y.3d ___ [Dec. 17,
2019]; Matter of Ryan XX. v Sarah YY., 175 A.D.3d
1623, 1624-1625 ; Matter of Jennifer D. v Jeremy
E., 172 A.D.3d 1556, 1557 ).
Court noted in its best interests analysis that there appear
to be no real concerns about the father's living
situation or his ability to care for the child. Moreover,
although the father minimizes his interactions with the
mother and her family and does not countenance any deviation
from the terms of the December 2016 order, his behavior does
not appear to have affected the child's relationship with
the mother and does not interfere with any visitation to
which she is entitled (see Matter of Lewis v
VanWormer, 45 A.D.3d 1196, 1197 , lv
denied 10 N.Y.3d 712');">10 N.Y.3d 712 ; see also Matter of
Kashif II. v Lataya KK., 99 A.D.3d 1075, 1077 ).
As for the mother, she has made impressive strides in
addressing her substance abuse problem since the December
2016 order, has an appropriate living situation with her
parents and has regained custody of her older daughter. Her
substance abuse treatment is very much a work in progress,
however, and she remains unemployed so that she can focus on
her recovery. Family Court weighed these circumstances and
determined that the mother should be afforded expanded
visitation, some of it unsupervised, but that further changes
must wait for the mother to move beyond the "early
stages" of her treatment and cement her sobriety. The
mother feels, with some agreement from the attorney for the
child, that Family Court did not go far enough. After
reviewing the proof and according deference to Family
Court's assessments of credibility, we disagree and find
a sound and substantial basis in the record for the
court's determination (see Matter of Aree RR. v John
SS., 176 A.D.3d 1516, 1517 ; cf. Matter of
Gorham v Gorham, 56 A.D.3d 985, 987-988 ). Thus,
it will not be disturbed.
inasmuch as the father and the attorney for the child did not
appeal from Family Court's order, they are barred from
seeking affirmative relief not sought by the mother (see
Matter of Hoppe v Hoppe, 165 A.D.3d 1422, 1426 n ,
lvs denied 32 N.Y.3d 912, 913 ; Matter of
Durgala v Batrony, 154 A.D.3d 1115, 1118 ).
Mulvey, J.P., Aarons and Pritzker, JJ., concur.
that the order is ...