        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

314
CAF 11-00445
PRESENT: SCUDDER, P.J., SMITH, CARNI, AND SCONIERS, JJ.


IN THE MATTER OF CINDY C. STILSON,
PETITIONER-RESPONDENT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

DAVID R. STILSON, SR.,
RESPONDENT-PETITIONER-RESPONDENT.


DAVID J. PAJAK, ALDEN, FOR PETITIONER-RESPONDENT-APPELLANT.

BENNETT, DIFILIPPO & KURTZHALTS, LLP, EAST AURORA (MAURA C. SEIBOLD OF
COUNSEL), FOR RESPONDENT-PETITIONER-RESPONDENT.

DAVID C. BRAUTIGAM, ATTORNEY FOR THE CHILD, HOUGHTON, FOR DAVID R.S.,
II.


     Appeal from an order of the Family Court, Allegany County (Lynn
L. Hartley, J.H.O.), entered January 3, 2011 in a proceeding pursuant
to Family Court Act article 6. The order granted respondent-
petitioner primary physical custody of the parties’ child.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner-respondent mother commenced this
proceeding seeking to modify a prior order of custody and visitation.
She appeals from an order that, following a hearing, granted
respondent-petitioner father’s cross petition by awarding him primary
physical custody of the parties’ child, with visitation to the mother.
Contrary to the mother’s contention, Family Court properly granted the
cross petition.

     “The mother . . . failed to preserve for our review her
contention that the father failed to establish a change of
circumstances warranting review of the prior order” (Matter of
Canfield v McCree, 90 AD3d 1653, 1654; see Matter of Deegan v Deegan,
35 AD3d 736). Indeed, in her petition, the mother alleged that there
had been such a change of circumstances. In any event, the mother is
correct that, “ ‘[w]here an order of custody and visitation is entered
on stipulation, a 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 Donnelly v Donnelly, 55 AD3d
1373). Here, we conclude that there was a sufficient showing of
                                 -2-                           314
                                                         CAF 11-00445

changed circumstances based, inter alia, upon the parties’ inability
to reach an agreement regarding certain aspects of the child’s
visitation schedule, and upon the changes in the child’s school
schedule since the entry of the prior order (see generally Matter of
Claflin v Giamporcaro, 75 AD3d 778, 779-780, lv denied 15 NY3d 710;
Matter of Schimmel v Schimmel, 262 AD2d 990, lv denied 93 NY2d 817).

     Moreover, contrary to the mother’s further contention, the court
properly determined that it was in the child’s best interests to award
the father primary physical custody of the child. “ ‘Generally, a
court’s determination regarding custody and visitation issues, based
upon a first-hand assessment of the credibility of the witnesses after
an evidentiary hearing, is entitled to great weight and will not be
set aside unless it lacks an evidentiary basis in the record’ ”
(Matter of Dubuque v Bremiller, 79 AD3d 1743, 1744). Here, the
court’s determination is supported by the requisite “sound and
substantial basis in the record” and thus will not be disturbed (id.).
We agree with the court’s conclusion that, although both parties
appear to be fit and loving parents, the evidence presented at the
hearing establishes that the father is better able to provide for the
child’s educational and medical needs.




Entered:   March 16, 2012                      Frances E. Cafarell
                                               Clerk of the Court
