                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: February 25, 2016                   520573
________________________________

In the Matter of CHAD E. BUSH,
                    Respondent,
      v
                                            MEMORANDUM AND ORDER
APRIL M. MILLER,
                    Appellant.
________________________________


Calendar Date:   January 5, 2016

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

                             __________


     Lisa A. Natoli, Norwich, for appellant.

     Lisa K. Miller, McGraw, for respondent.

     Martha Hertzberg, Cortland, attorney for the child.

                             __________


Lynch, J.

      Appeal from an order of the Family Court of Cortland County
(Campbell, J.), entered January 30, 2015, which, among other
things, granted petitioner's application, in a proceeding
pursuant to Family Ct Act article 6, for custody of the parties'
child.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the unmarried parents of a child
(born in 2002). Pursuant to a 2012 stipulated custody order, the
parties shared joint legal custody of the child, the mother had
physical custody and the father had parenting time every other
weekend. The child thus resided with the mother and two half
siblings until an incident in late June 2014, when the mother
became so intoxicated that she was vomiting and unable to care
                              -2-                520573

for herself, and was combative and threatened to harm herself.
In July 2014, the father sought sole custody of the child based
on the June 2014 event. Following a fact-finding hearing, Family
Court granted sole legal and primary physical custody of the
child to the father and supervised parenting time to the mother.
The mother now appeals.

      A parent seeking to modify an existing custody order must
demonstrate an intervening change in circumstances to warrant
consideration of the child's best interests (see Matter of Rohde
v Rohde, 135 AD3d 1011, ___, 22 NYS3d 666, 668 [2016]; Matter of
Schlegel v Kropf, 132 AD3d 1181, 1182 [2015]). The threshold
change in circumstances must be met even where, as here, the
parties stipulated to a custodial order (see Matter of Kiernan v
Kiernan, 114 AD3d 1045, 1046 [2014]). According the requisite
deference to Family Court's credibility determinations, we find
that the evidence of the intervening child protective reports
involving the mother's excessive consumption of alcohol and
inadequate guardianship of the child was a sufficient change in
circumstances to warrant consideration of the child's best
interests to determine whether the May 2012 custody order should
be continued (see Matter of Kiernan v Kiernan, 114 AD3d at 1046;
Matter of Graves v Stockigt, 79 AD3d 1170, 1171 [2010]).

      Turning to the issue of best interests, we agree that
Family Court properly awarded sole custody to the father. The
best interests analysis entails consideration of "such factors as
the parents' past performance and relative fitness, their
willingness to foster a positive relationship between the child
and the other parent, as well as their ability to maintain a
stable home environment and provide for the child's overall
well-being" (Matter of Andrea CC. v Eric DD., 132 AD3d 1028, 1029
[2015] [internal quotation marks and citation omitted]). A
child's wishes may be considered but are not dispositive (see
Matter of Colona v Colona, 125 AD3d 1123, 1126 [2015]). Here,
the attorney for the child advised Family Court that the child
wished to live with the father. Family Court also considered the
father's more stable home life with his wife and their six
children, and that he did not have a history with child
protective services or any criminal history.
                              -3-                  520573

      Although we are mindful that the mother has been the
child's primary care giver, the mother's inability to properly
supervise the child and her two half siblings has subjected the
mother to ongoing scrutiny by child protective services and
consequent loss of custody of both half siblings. Upon
consideration of the record as a whole, including the evidence of
each party's relative fitness and ability to provide a safe home
and the mother's lack of insight with regard to her behavior, we
find a sound and substantial basis for Family Court's decision to
modify the prior order and award sole legal and physical custody
to the father (see Matter of Menhennett v Bixby, 132 AD3d 1177,
1179-1180 [2015]; Matter of Colona v Colona, 125 AD3d at 1126;
Matter of Bush v Bush, 104 AD3d 1069, 1073 [2013]).

     McCarthy, J.P., Egan Jr. and Clark, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
