Opinion
2012-11-16
In the Matter Of Joshua BURRELL, Petitioner–Respondent, v. Angela D. BURRELL, Respondent–Appellant.
Cara A. Waldman, Fairport, for Respondent–Appellant. Culley, Marks, Tanenbaum & Pezzulo, LLP, Rochester (Jon E. Bonavilla Of Counsel), for Petitioner–Respondent.
Cara A. Waldman, Fairport, for Respondent–Appellant. Culley, Marks, Tanenbaum & Pezzulo, LLP, Rochester (Jon E. Bonavilla Of Counsel), for Petitioner–Respondent.
Wendy S. Sisson, Attorney for the Child, Geneseo, for Brianna B.
PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO, AND MARTOCHE, JJ.
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 A.D.3d 1481, 1482, 889 N.Y.S.2d 350). 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 A.D.3d 938, 938–939, 884 N.Y.S.2d 783,lv. dismissed13 N.Y.3d 825, 890 N.Y.S.2d 438, 918 N.E.2d 952), 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 N.Y.2d 167, 171–174, 451 N.Y.S.2d 658, 436 N.E.2d 1260;Matter of Brothers v. Chapman, 83 A.D.3d 1598, 1598–1599, 922 N.Y.S.2d 672,lv. denied17 N.Y.3d 707, 2011 WL 3925060).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.