                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: April 2, 2015                       518287
________________________________

In the Matter of RALPH B.
   BAILEY JR.,
                    Appellant,
      v                                       MEMORANDUM AND ORDER

KIMBERLY J. BLAIR,
                    Respondent.
________________________________


Calendar Date:   February 17, 2015

Before:   McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

                               __________


     Lisa A. Burgess, Indian Lake, for appellant.

     Michelle I. Rosien, Philmont, for respondent.

      Joseph E. Nichols, South Glens Falls, attorney for the
child.

                               __________


Egan Jr., J.

      Appeal from an order of the Family Court of Warren County
(Breen, J.), entered November 27, 2013, which partially granted
petitioner's application, in a proceeding pursuant to Family Ct
Act article 6, for modification of a prior order of custody.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the parents of a son (born in 2002).
Pursuant to a 2012 order of custody, which was incorporated but
not merged into the parties' judgment of divorce, the parties
were awarded joint legal custody of the child with essentially
equal parenting time. Following the parties' divorce, the mother
and her adult son from another relationship moved in with Joann
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Finn, now the mother's spouse, and Finn's adult daughter, Ellen,
the latter of whom has a lengthy history of mental health issues.

      In June 2013, during the course of what the mother
described as the "random act of a delusional child," Ellen
assaulted the mother from behind – striking her in the head with
a broom handle as she was performing yard work. Shortly
thereafter, the father, believing that Ellen posed a threat to
the parties' child, commenced this modification proceeding by
order to show cause seeking, among other things, a temporary
order removing the child from the mother's home pending the
development of a safety plan and a stay-away order of protection
against Ellen and in favor of the child. Family Court, among
other things, granted the requested relief and, following a
hearing on the order to show cause, approved a limited visitation
schedule for the mother, provided that such visitations not take
place at the mother's residence.

      The father, who resided with his adult son from a prior
relationship and his son's girlfriend, thereafter filed an
amended petition seeking, among other things, sole legal and
physical custody of the child. Following a hearing, Family Court
made minor modifications to the prior order of custody –
directing that the child have no unsupervised contact with Ellen
and that he not be compelled to engage in any family counseling
that involved Ellen – but otherwise continued the joint legal and
shared physical custody arrangement previously in place. This
appeal by the father ensued.

      "A parent seeking to modify an existing custody order bears
the burden of demonstrating a sufficient change in circumstances
since the entry of the prior order to warrant modification
thereof in the child[]'s best interests" (Matter of Palmatier v
Carman, 125 AD3d 1139, ___, 2015 NY Slip Op 01498, *1 [2015]
[internal quotation marks and citations omitted]; see Matter of
Sherwood v Barrows, 124 AD3d 940, 940 [2015]). As noted
previously, Ellen has a long history of mental illness, and the
record reflects that, in the months preceding her June 2013
attack upon the mother, she engaged in a series of acts – some of
which were directed toward the mother and/or involved violence –
that required police intervention. Although the child apparently
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did not witness any of these incidents, he was present in the
mother's household on the day that she was attacked by Ellen with
the broom handle and, given the chaotic conditions then existing
in the mother's household, we are satisfied that the father
demonstrated a sufficient change in circumstances to trigger a
best interests analysis (see Matter of Clark v Hart, 121 AD3d
1366, 1367 [2014]).

      As to the disposition fashioned by Family Court, "[t]he
primary concern in any custody matter is, of course, the best
interests of the child[] and, to that end, Family Court must give
due consideration to, among other things, each parent's ability
to furnish and maintain a suitable and stable home environment
for the child[], past performance, relative fitness, ability to
guide and provide for the child[]'s overall well-being and
willingness to foster a positive relationship between the child[]
and the other parent" (Matter of Palmatier v Carman, 2015 NY Slip
Op 01498 at *1 [internal quotation marks and citations omitted];
see Matter of Lawrence v Kowatch, 119 AD3d 1004, 1005 [2014];
Matter of Paul A. v Shaundell LL., 117 AD3d 1346, 1348-1349
[2014], lv dismissed and denied 24 NY3d 937 [2014]). In
considering such factors, Family Court's factual findings and
credibility determinations are entitled to deference (see Matter
of Joshua UU. v Martha VV., 118 AD3d 1051, 1052 [2014]; Matter of
Brown v Brown, 88 AD3d 1174, 1175 [2011]), particularly where, as
here, Family Court was well acquainted with the parties.
Applying these principles to the matter before us, we find that
Family Court's determination, which largely continued the
existing custody arrangement while providing certain safeguards
for the child, is supported by a sound and substantial basis in
the record.

      Initially, we have no quarrel with Family Court's decision
to continue the award of joint legal custody. Despite the
parties' apparently litigious history and differing perspectives
on the child's need for counseling, nothing in the record
suggests that their "relationship has deteriorated to the point
where they are unable to maintain even a modicum of communication
and cooperation for the sake of their child" (Matter of Dornburgh
v Yearry, 124 AD3d 949, 951 [2015] [internal quotation marks and
citation omitted]). To the contrary, the mother and the father
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have demonstrated both an ability to work in a cooperative
fashion consistent with the child's best interests and a
willingness to foster the child's relationship with the other
parent.

      As to the continuation of the shared physical custody
arrangement, the record reveals that Family Court was presented
with two fit and loving parents, each of whom worked full time
and, notably, resided in a household with an adult child from a
prior relationship with mental health or behavioral issues.
Although the father's concerns for the child's safety in the
mother's home were understandable, Family Court received
extensive testimony from the mother, her wife and Ellen's mental
health professionals detailing Ellen's current medication and
treatment plan, Ellen's behavior in the household since the June
2013 incident and the safety plan that was instituted following
that event. According to both the mother and her wife, Ellen did
not experience any violent or delusional episodes after her
medication was adjusted in July 2013, and the record reflects
that, as of the time of the hearing, Ellen was in compliance with
her treatment mandates. Additionally, Ellen's therapist did not
view Ellen as posing a threat to the general public and
specifically testified that Ellen "never made any kind of
threatening comments or comments at all about the [child]."
Under these circumstances, and granting due deference to Family
Court's factual and credibility findings, we are satisfied that
its decision to continue shared physical custody of the child has
a sound and substantial basis in the record and, overall, is in
the child's best interests. Accordingly, the underlying order is
affirmed.

     McCarthy, J.P., Devine and Clark, JJ., concur.
                        -5-                  518287

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
