Opinion
02-03-2017
In the Matter of Jacob R. BELCHER, Petitioner–Respondent, v. Monica A. MORGADO, Respondent–Appellant.
Charles J. Greenberg, Amherst, for Respondent–Appellant. Ashley N. Lyon, Attorney for the Child, Adams.
Charles J. Greenberg, Amherst, for Respondent–Appellant.
Ashley N. Lyon, Attorney for the Child, Adams.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, DeJOSEPH, AND CURRAN, JJ.
MEMORANDUM:
In this custody proceeding pursuant to Family Court Act article 6, respondent mother appeals from an order, entered after a hearing, that modified a prior order by awarding petitioner father custody of the parties' child. Contrary to the mother's contention, we conclude that the father established a change in circumstances sufficient to warrant an inquiry into whether a change in custody is in the best interests of the child (see Matter of Elniski v. Junker, 142 A.D.3d 1392, 1392–1393, 38 N.Y.S.3d 478 ; Matter of Schieble v. Swantek, 129 A.D.3d 1656, 1657, 12 N.Y.S.3d 463 ). The mother admitted at the hearing that she was arrested for assault in the second degree and spent about two weeks in jail following an incident with her former boyfriend that occurred with the child asleep in the home (see Matter of Fountain v. Fountain, 130 A.D.3d 1107, 1107–1108, 12 N.Y.S.3d 641 ; Matter of Bell v. Raymond, 67 A.D.3d 1410, 1411, 887 N.Y.S.2d 898 ; see generally Matter of Pecore v. Blodgett, 111 A.D.3d 1405, 1405–1406, 975 N.Y.S.2d 301, lv. denied 22 N.Y.3d 864, 2014 WL 1243626 ). Even accepting the assertion in the mother's brief that she was sentenced to time served and probation upon pleading guilty to the assault charge subsequent to the custody hearing, we reject her contention that the arrest has "no current bearing" on this proceeding, inasmuch as the underlying incident is plainly relevant to her fitness as a parent (see generally Matter of Jeker v. Weiss, 77 A.D.3d 1069, 1072–1073, 909 N.Y.S.2d 184 ).
Although Family Court should have made explicit findings concerning the best interests of the child, the record is sufficiently complete for us to make our own findings (see Matter of Howell v. Lovell, 103 A.D.3d 1229, 1231, 960 N.Y.S.2d 278 ; Matter of Moore v. Kazacos, 89 A.D.3d 1546, 1546, 932 N.Y.S.2d 788, lv. denied 18 N.Y.3d 806, 2012 WL 446225 ), and we are satisfied that the award of custody to the father is in the child's best interests in view of the evidence of domestic violence at the mother's home (see Pecore, 111 A.D.3d at 1406, 975 N.Y.S.2d 301 ; Matter of Brothers v. Chapman, 83 A.D.3d 1598, 1599–1600, 922 N.Y.S.2d 672, lv. denied 17 N.Y.3d 707, 2011 WL 3925060 ; cf. Schieble, 129 A.D.3d at 1657, 12 N.Y.S.3d 463 ). Notably, the court found the mother's testimony that she no longer had any relationship with her former boyfriend to be "not entirely credible," and we perceive no basis for disturbing that credibility determination (see Matter of Sanchez v. Rexhepi, 138 A.D.3d 869, 869, 30 N.Y.S.3d 170 ; Howell, 103 A.D.3d at 1231, 960 N.Y.S.2d 278 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.