Taylor v. Rivera

261 A.D.2d 947, 689 N.Y.S.2d 800, 1999 N.Y. App. Div. LEXIS 5052

Opinion

—Order unanimously affirmed without costs. Memorandum: The evidence adduced at the custody hearing supports Family Court’s conclusion that it is in the best interests of the child for custody to be transferred from respondent to petitioner. Although the change disrupts a custodial arrangement of seven years, “the disruption of change is not necessarily conclusive” (Matter of Louise E. S. v W. Stephen S., 64 NY2d 946, 947). The court, which had the advantage of observing and hearing the witnesses (see, Matter of Louise E. S. v W. Stephen S., supra, at 947), concluded that countervailing circumstances existed to warrant a change in the long-standing custody arrangement (cf., Fox v Fox, 177 AD2d 209, 213). The court determined that petitioner was in a better position to provide for the child (see, Fox v Fox, supra, at 210). The court also expressed legitimate concern, as did the Law Guardian, over respondent’s failure to comply with prior orders of Family Court and to cooperate with the court-ordered home study performed by the probation department. Finally, the child expressed to the Law Guardian her desire to live with petitioner. Although the desire of a 10-year-old child is not . determinative, it is a factor to be considered (see, Fox v Fox, supra, at 210). (Appeal from Order of Chautauqua County Family Court, Hartley, J. — Custody.) Present — Green, J. P., Hayes, Wisner, Pigott, Jr., and Scudder, JJ.