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

204
CAF 16-00027
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ.


IN THE MATTER OF JUSTIN E. KIEFFER,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DELEMA DEFRAIN, RESPONDENT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF
COUNSEL), FOR RESPONDENT-APPELLANT.

CONBOY, MCKAY, BACHMAN & KENDALL, LLP, WATERTOWN (MATTHEW J. PORTER OF
COUNSEL), FOR PETITIONER-RESPONDENT.

RUTHANNE G. SANCHEZ, ATTORNEY FOR THE CHILD, WATERTOWN.


     Appeal from an order of the Family Court, Jefferson County (Diana
D. Trahan, R.), entered August 24, 2015 in a proceeding pursuant to
Family Court Act article 6. The order, inter alia, granted joint
custody of the subject child to the parties, with primary physical
residence to petitioner.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating the tenth ordering
paragraph and as modified the order is affirmed without costs.

     Memorandum: In this proceeding pursuant to Family Court Act
article 6, respondent mother appeals from an order that, inter alia,
modified a prior order entered on stipulation of the parties by
awarding petitioner father primary physical residence of the parties’
child. Contrary to the mother’s contention, we conclude that Family
Court properly determined that the father met his burden of
establishing a change in circumstances sufficient to warrant an
inquiry into whether a change of custody is in the best interests of
the child (see Matter of Murphy v Wells, 103 AD3d 1092, 1093, lv
denied 21 NY3d 854; Matter of Markey v Bederian, 274 AD2d 816,
817-818; Matter of Brewer v Whitney, 245 AD2d 842, 843). Contrary to
the mother’s further contention, there is a sound and substantial
basis in the record for the court’s determination that it is in the
child’s best interests to award the father primary physical residence
of the child and to award visitation with the mother (see Matter of
Tuttle v Tuttle, 137 AD3d 1725, 1726; see generally Eschbach v
Eschbach, 56 NY2d 167, 171-174). In addition, we reject the mother’s
contention that she was denied effective assistance of counsel (see
Matter of Nicholson v Nicholson, 140 AD3d 1689, 1690, lv denied 28
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                                                           CAF 16-00027

NY3d 903; Matter of Brown v Gandy, 125 AD3d 1389, 1390).

     We agree with the mother, however, that the court erred in sua
sponte ordering that the father shall have the right to relocate the
residence of the child anywhere in the continental United States with
30 days’ notice to the mother inasmuch as that relief was not
requested by the parties or the Attorney for the Child (see Matter of
Irons v Schneller, 258 AD2d 652, 653; see generally Matter of Majuk v
Carbone, 129 AD3d 1485, 1485-1486). We therefore modify the order
accordingly.




Entered:   February 10, 2017                   Frances E. Cafarell
                                               Clerk of the Court
