Opinion
426 CAF 15-01709.
03-31-2017
In the Matter of Frank L. STANTON, Petitioner–Respondent, v. Nina M. KELSO, Respondent–Appellant.
Bridget L. Field, Rochester, for Respondent–Appellant. Brian P. Degnan, Attorney for The Child, Batavia.
Bridget L. Field, Rochester, for Respondent–Appellant.
Brian P. Degnan, Attorney for The Child, Batavia.
PRESENT: WHALEN, P.J., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM:
Respondent mother appeals from an order that continued joint custody of the parties' son but transferred primary physical custody of the child to petitioner father, with visitation to the mother. Where, as here, the parties' existing custody arrangement is based on a consent order, which is "entitled to less weight than a disposition after a plenary trial" (Matter of Alexandra H. v. Raymond B.-H., 37 A.D.3d 1125, 1126, 829 N.Y.S.2d 778 [internal quotation marks omitted] ), Family Court "cannot modify that order unless a sufficient change in circumstances—since the time of the stipulation—has been established, and then only where a modification would be in the best interests of the child[ ]" (Matter of Hight v. Hight, 19 A.D.3d 1159, 1160, 796 N.Y.S.2d 494 [internal quotation marks omitted]; see Matter of Stevenson v. Smith, 145 A.D.3d 1598, 1599, 43 N.Y.S.3d 832 ). The court's determination in a custody matter " ‘is entitled to great deference and will not be disturbed where’ ... it is based on a careful weighing of appropriate factors" (Stevenson, 145 A.D.3d at 1598, 43 N.Y.S.3d 832 ; see Matter of Pinkerton v. Pensyl, 305 A.D.2d 1113, 1113–1114, 757 N.Y.S.2d 921 ).
Contrary to the mother's contention, we conclude that the father established the requisite change in circumstances since the entry of the consent order, namely, the child's repeated changes of schools, his recent attendance at a school in the district where the father resides, and the parents' inability to agree on where their child should attend school (see Sequeira v. Sequeira, 105 A.D.3d 504, 505, 963 N.Y.S.2d 102, lv. denied 21 N.Y.3d 1052, 973 N.Y.S.2d 85, 995 N.E.2d 1157 ; see generally Pecore v. Blodgett, 111 A.D.3d 1405, 1406, 975 N.Y.S.2d 301, lv. denied 22 N.Y.3d 864, 2014 WL 1243626 ). We further conclude that there is a sound and substantial basis in the record for the determination that it is in the child's best interests to change his primary physical residence from the mother's house to the father's house in connection with the child's school enrollment (see Stevenson, 145 A.D.3d at 1599, 43 N.Y.S.3d 832 ; see generally Matter of Tuttle v. Tuttle, 137 A.D.3d 1725, 1726, 28 N.Y.S.3d 755 ).
We note that the mother at oral argument withdrew her contentions that the court erred in failing to conduct, and that her counsel was ineffective in failing to seek, a Lincoln hearing (see Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 271–274, 299 N.Y.S.2d 842, 247 N.E.2d 659 ). We have considered the mother's remaining claim of ineffective assistance of counsel, and we conclude that it is without merit (see Matter of Bennett v. Abbey, 141 A.D.3d 882, 884, 34 N.Y.S.3d 762 ; Matter of Thompson v. Gibeault, 305 A.D.2d 873, 875, 760 N.Y.S.2d 580 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.