Amy L.M. v. Kevin M.M.

31 A.D.3d 1224, 817 N.Y.S.2d 850

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 7, 2006
• Status: Published

Opinion

Appeal from an order of the Family Court, Oneida County (James R. Griffith, J.), entered December 30, 2005 in a proceeding pursuant to Family Court Act article 6. The order, inter alia, awarded respondent primary physical custody of the parties’ daughter.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Petitioner mother appeals from an order that, inter alia, granted the petition of respondent father seeking to modify the custody and visitation provisions of the parties’ judgment of divorce, to which the parties had stipulated, by awarding respondent primary physical custody of the parties’ daughter. Petitioner contends that Family Court erred in determining that there was the requisite showing of a change in circumstances to warrant modification of the existing custody arrangement. “It is well established that alteration of an established custody arrangement will be ordered only upon a showing of a change in circumstances which reflects a real need for change to ensure the best interest of the child” (Matter of Irwin v Neyland, 213 AD2d 773, 773 [1995]; see Fuss v Fuss, 15 AD3d 949, 950 [2005]; Matter of Ross v Trento, 275 AD2d 972 [2000]; Matter of Hilliard v Peroni, 245 AD2d 1107, 1108 [1997]). The record establishes that petitioner was in the midst of moving to a new home and that the child would have to change school districts. Those changed circumstances, considered together with the remarriage of respondent since the parties stipulated to the custody and visitation provisions in the judgment of divorce, petitioner’s impending marriage, and the change in the parties’ employment schedules since the time of the parties’ stipulation, constitute the requisite evidentiary showing of a “change of circumstances warranting a reexamination of the existing custody arrangement” (Matter of Muniz v Paradizo, 258 AD2d 970, 970 [1999]; see Matter of Maher v Maher, 1 AD3d 987, 988 [2003]). Present—Scudder, J.P., Kehoe, Smith, Pine and Hayes, JJ.