Matter of Daniel N. v. Joy N.

139 A.D.3d 469, 31 N.Y.S.3d 63

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 10, 2016
• Docket: 1115 1114
• Status: Published

Opinion

Order, Family Court, New York County (Gloria Sosa-Lintner, J.), entered on or about October 9, 2014, which, to the extent appealed from as limited by the briefs, after a hearing, denied the petition to modify the parties’ custody order, unanimously affirmed, without costs. Appeal from order, same court and Judge, entered on or about December 6, 2011, which ordered a forensic evaluation, unanimously dismissed, without costs, as abandoned.

Petitioner failed to establish that there has been a change in circumstances warranting modification of the custody order (see e.g. Matter of Iris R. v Jose R., 74 AD3d 457 [1st Dept 2010]). That the custody order was entered on consent does not relieve him of the burden of proof on that issue (see id,.). Petitioner failed to substantiate any ill effects on the child arising from respondent’s move, any deficiencies in respondent’s provision of medical care to the child, or any disruption of the child’s midweek communication with petitioner. Moreover, the move is within the area permitted by the custody order (see Matter of Molinari v Tuthill, 59 AD3d 722, 723 [2d Dept 2009]).

Although the requisite change in circumstances has not been shown, we note that a consideration of the best interests of the child supports the determination that the child should remain with respondent. Petitioner argues that the court failed to take into account the child’s expressed preference to live with him. However, the child’s desire is “but one factor to be considered,” not determinative (Eschbach v Eschbach, 56 NY2d 167, 173 [1982]). Moreover, the child has since expressed a preference to refrain from taking a position.

Concur — Friedman, J.P., Acosta, Moskowitz, Kapnick and Gesmer, JJ.