Opinion
419 CAF 13-01774
05-08-2015
In the Matter of Jessica W. VOORHEES, Petitioner–Respondent–Appellant, v. Gary I. TALERICO, II, Respondent–Petitioner–Respondent. In the Matter of Jessica W. Voorhees, Petitioner–Appellant, v. Gary I. Talerico, II, Respondent–Respondent.
Mary R. Humphrey, New Hartford, for Petitioner–Respondent–Appellant. John J. Raspante, Utica, for Respondent–Petitioner–Respondent. John G. Koslosky, Attorney for the Child, Utica.
Mary R. Humphrey, New Hartford, for Petitioner–Respondent–Appellant.
John J. Raspante, Utica, for Respondent–Petitioner–Respondent.
John G. Koslosky, Attorney for the Child, Utica.
PRESENT: SMITH, J.P., VALENTINO, WHALEN, and DeJOSEPH, JJ.
Opinion
MEMORANDUM:Petitioner-respondent mother appeals from an order that, inter alia, granted the petition of respondent-petitioner father seeking to modify a prior order of custody by awarding him primary physical custody of the parties' child, and dismissed the mother's family offense petition. We affirm.
Contrary to the mother's contention, we conclude that Family Court properly determined 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’ ” (Matter of Mercado v. Frye, 104 A.D.3d 1340, 1341, 961 N.Y.S.2d 717, lv. denied 21 N.Y.3d 859, 2013 WL 3198162 ; see Matter of York v. Zullich, 89 A.D.3d 1447, 1448, 932 N.Y.S.2d 637 ). The father presented evidence establishing that the conditions in the mother's residence were unsanitary and unsafe for the child and that the child had been exposed to instances of sexual abuse while under the mother's care and supervision (see Matter of Graves v. Stockigt, 79 A.D.3d 1170, 1171, 911 N.Y.S.2d 705 ; Matter of Laurie II. v. Raymond JJ., 68 A.D.3d 1170, 1171, 890 N.Y.S.2d 156 ). Furthermore, according due deference to the court's assessment of witness credibility (see Graves, 79 A.D.3d at 1171, 911 N.Y.S.2d 705 ), we conclude that the court's determination to award primary physical custody of the child to the father is supported by a sound and substantial basis in the record (see Mercado, 104 A.D.3d at 1341–1342, 961 N.Y.S.2d 717 ). We note that the mother's contention that the court erred in continuing joint legal custody of the child is raised for the first time on appeal and thus is not properly before us (see generally Matter of Murphy v. Peace, 72 A.D.3d 1626, 1626, 899 N.Y.S.2d 493 ).
Finally, the court did not err in dismissing the mother's family offense petition and refusing to issue an order of protection. The mother contends for the first time on appeal that the father's actions constituted the offenses of menacing in the third degree and disorderly conduct, and we therefore do not consider that contention (see generally id. ). We reject the mother's further contention that her petition should have been granted on the ground that the father's actions constituted harassment in the second degree. According due deference to the court's credibility determinations (see Matter of Shelly RR. v. Frank SS., 72 A.D.3d 1426, 1426–1427, 898 N.Y.S.2d 898, lv. denied 15 N.Y.3d 705, 2010 WL 3396909 ), we conclude that the mother failed to establish by a “fair preponderance of the evidence” that the father engaged in acts constituting harassment in the second degree (Family Ct. Act § 832 ; cf. Matter of Chadwick F. v. Hilda G., 77 A.D.3d 1093, 1093–1094, 909 N.Y.S.2d 577, lv. denied 16 N.Y.3d 703, 2011 WL 446450 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.