Opinion
2013-03-22
In the Matter of Lawrence C. NELSON, Petitioner–Respondent, v. Marie L. MORALES, Respondent–Appellant.
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of Counsel), for Respondent–Appellant. Law Office of Mark A. Young, Rochester (Bridget L. Field Of Counsel), for Petitioner–Respondent.
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of Counsel), for Respondent–Appellant. Law Office of Mark A. Young, Rochester (Bridget L. Field Of Counsel), for Petitioner–Respondent.
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND WHALEN, JJ.
MEMORANDUM:
In this custody proceeding pursuant to article 6 of the Family Court Act, respondent mother appeals from an order modifying a prior custody order by awarding primary physical custody of the parties' teenage child to petitioner father. The prior order, issued in 1999 when the child was almost two years old, awarded primary physical custody to the mother. In 2007, the father moved to modify the 1999 order but his petition was dismissed following a hearing, Family Court having determined that he failed to prove a sufficient change of circumstances to warrant modification. The father commenced this modification proceeding in July 2010, but this time the court granted his petition, determining that the father had established a change of circumstances since the prior order and that it was in the best interests of the child to reside primarily with the father. The mother contends on appeal that the court erred in considering her pre–2007 changes in residence in determining that there had been a change in circumstances inasmuch as those changes were considered in the prior custody hearing and thus are barred by res judicata from consideration herein. We reject that contention. “It is well settled that ‘[a] party seeking a change in an established custody arrangement must show a change in circumstances [that] reflects a real need for change to ensure the best interest[s] of the child’ ” ( Matter of Moore v. Moore, 78 A.D.3d 1630, 1630, 910 N.Y.S.2d 803,lv. denied16 N.Y.3d 704, 2011 WL 500900;see Matter of Crudele v. Wells [appeal No. 2], 99 A.D.3d 1227, 1228, 952 N.Y.S.2d 363;Matter of Maher v. Maher, 1 A.D.3d 987, 988, 767 N.Y.S.2d 179).
Here, the court properly considered the mother's pre–2007 changes in residence as background information, in determining the significance of the mother's post–2007 change in residence ( see generally Matter of Tarrant v. Ostrowski, 96 A.D.3d 1580, 1581, 947 N.Y.S.2d 726,lv. denied20 N.Y.3d 855, 2013 WL 69170; Matter of Gardner v. Gardner, 69 A.D.3d 1243, 1244–1245, 893 N.Y.S.2d 698). In any event, even assuming, arguendo, that the court erred in considering her pre–2007 changes in residence, we conclude that the other evidence, including the child's statements at the Lincoln hearing, was sufficient to establish a change in circumstances.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.