Opinion
09-30-2016
In the Matter of Keliann M. ELNISKI, also Known as Keliann M. Argy, Petitioner–Respondent–Appellant, v. Robert M. JUNKER, Respondent–Petitioner–Respondent.
Keliann M. Argy, Orchard Park, for petitioner-respondent-appellant. Mattingly Cavagnaro LLP, Buffalo (Melissa A. Cavagnaro of Counsel), for respondent-petitioner-respondent. Pamela Thibodeau, Attorney for the Child, Williamsville.
Appeal from an order of the Family Court, Erie County (Mary G. Carney, J.), entered June 27, 2014 in a proceeding pursuant to Family Court Act article 6. The order, inter alia, modified a prior consent order by awarding respondent-petitioner primary residential custody of the parties' child with visitation to petitioner-respondent.
Keliann M. Argy, Orchard Park, for petitioner-respondent-appellant.
Mattingly Cavagnaro LLP, Buffalo (Melissa A. Cavagnaro of Counsel), for respondent-petitioner-respondent.
Pamela Thibodeau, Attorney for the Child, Williamsville.
MEMORANDUM:In this proceeding pursuant to Family Court Act article 6, petitioner-respondent mother appeals from an order that, inter alia, modified a prior consent order by awarding respondent-petitioner father primary residential custody of the parties' child with visitation to the mother, and otherwise continued joint legal custody. Contrary to the mother's contention, we conclude that the father met his burden of establishing 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 Tuttle v. Tuttle, 137 A.D.3d 1725, 1725, 28 N.Y.S.3d 755 ; Matter of Brewer v. Soles, 111 A.D.3d 1403, 1403–1404, 975 N.Y.S.2d 299 ; 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 ; Matter of Simonds v. Kirkland, 67 A.D.3d 1481, 1482, 889 N.Y.S.2d 350 ). We also conclude, contrary to the mother's contention, that there is a sound and substantial basis in the record to support Family Court's determination that it was in the child's best interests to award the father primary residential custody (see Matter of Mercado v. Frye, 104 A.D.3d 1340, 1342, 961 N.Y.S.2d 717, lv. denied 21 N.Y.3d 859, 2013 WL 3198162 ).
We reject the mother's further contentions that the Attorney for the Child (AFC) was biased against her, and that the AFC failed to provide meaningful representation and act in the child's best interests. Those contentions are not preserved for our review because the mother made no motion to remove the AFC (see Matter of Juliet M., 16 A.D.3d 211, 212, 790 N.Y.S.2d 668 ; Matter of Nicole VV., 296 A.D.2d 608, 613, 746 N.Y.S.2d 53, lv. denied 98 N.Y.2d 616, 752 N.Y.S.2d 2, 781 N.E.2d 914 ) and, in any event, they are without merit (see Matter of Swinson v. Dobson, 101 A.D.3d 1686, 1687, 956 N.Y.S.2d 765, lv. denied 20 N.Y.3d 862, 2012 WL 7801756 ; Matter of Aaliyah Q., 55 A.D.3d 969, 971, 865 N.Y.S.2d 714 ; see generally 22 NYCRR 7.2 [d] ).
Finally, we reject the mother's contention that she was denied effective representation. The mother failed to “ ‘demonstrate the absence of strategic or other legitimate explanations' for counsel's alleged shortcomings,” and the record reflects that her counsel provided meaningful representation (People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; see Matter of Brandon v. King, 137 A.D.3d 1727, 1728–1729, 28 N.Y.S.3d 757, lv. denied 27 N.Y.3d 910, 2016 WL 3524319 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
PERADOTTO, J.P., CARNI, DeJOSEPH, NEMOYER, and CURRAN, JJ., concur.