                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 22, 2015                    516691
_____________________________________

In the Matter of ERICH BLAGG,
                    Appellant,
      v

MARY DOWNEY,                                 MEMORANDUM AND ORDER
                     Respondent.

ATTORNEY FOR THE CHILD,
                    Appellant.

(And Nine Other Related Proceedings.)
_____________________________________


Calendar Date:    September 18, 2015

Before:    Garry, J.P., Rose, Lynch and Devine, JJ.

                              __________


     David H. Swyer, Albany, for Erich Blagg, appellant.

     Mitch Kessler, Cohoes, attorney for the child, appellant.

     Michelle I. Rosien, Philmont, for respondent.

                              __________


Rose, J.

      Appeals from an order, a modified order and an amended
order of the Supreme Court (Clark, J.), entered March 22, 2013
and March 28, 2013 in Schenectady County, which, among other
things, granted respondent's application, in a proceeding
pursuant to Family Ct Act article 6, to modify a prior order of
custody and visitation.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the divorced parents of a daughter
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(born in 2002). In September 2010, the parties consented to a
custody order granting them joint legal custody of the child,
with primary physical custody to the mother and a liberal
schedule of visitation to the father. In July 2011, the father
filed a modification petition seeking sole custody of the child
and initiating a volley of nine additional petitions and cross
petitions by both parties seeking enforcement and/or modification
of the September 2010 order. Following a fact-finding hearing on
all 10 petitions, together with a Lincoln hearing, Supreme Court
issued a decision and order in March 2013, later modified and
amended that same month, modifying the September 2010 order by
awarding the mother sole custody of the child and granting
expanded visitation to the father. Both the attorney for the
child and the father now appeal.

      Initially, the mother contends that the appeals have been
rendered moot. She informs us that, during the pendency of these
appeals, the father, who had apparently struggled with drug
addiction in the past, resumed the abuse of heroin and became
homeless, which prompted her to file a new custody and visitation
modification petition. In December 2014, Family Court (Burke,
J.) granted the mother's petition and issued an order modifying
the March 2013 order to, among other things, restrict the father
to supervised visits with the child.1 Inasmuch as the December
2014 order simply continued the March 2013 order's award of sole
custody to the mother, did not modify the prior custody
arrangement and included no language providing that it superceded
all prior orders, we find that the portion of the prior order


    1
        We take judicial notice of the December 2014 order of
Family Court (Burke, J.) (see Matter of Mosier v Cole, 129 AD3d
1346, 1347 n 2 [2015]; Matter of Hannah U. [Patti U.], 110 AD3d
1258, 1260 n 5 [2013]). Further, although they are outside the
record, we also find it appropriate, under these circumstances,
to take judicial notice of the new facts and allegations
associated with the December 2014 order, inasmuch as not doing so
"would exalt the procedural rule — important though it is — to a
point of absurdity, and reflect no credit on the judicial
process" (Matter of Michael B., 80 NY2d 299, 318 [1992] [internal
quotation marks and citation omitted]).
                              -3-                516691

awarding sole custody to the mother remains appealable (cf.
Hughes v Gallup-Hughes, 90 AD3d 1087, 1088 [2011]; Matter of
Siler v Wright, 64 AD3d 926, 927-928 [2009]). Further, in view
of our ultimate conclusion that the record evidence supports the
award of sole custody to the mother, we see no reason to remit
the matter for consideration of the new allegations (compare
Matter of Michael B., 80 NY2d 299, 318 [1992]).

      Turning to the merits, Supreme Court's finding of a
sufficient change in circumstances is not in dispute. Thus, the
only issue is whether the award of sole custody to the mother is
in the child's best interests. A best interests analysis
involves the examination of several factors, including "the
relative fitness, stability, past performance, and home
environment of the parents, as well as their ability to guide and
nurture the child[] and foster a relationship with the other
parent" (Matter of Parchinsky v Parchinsky, 114 AD3d 1040, 1041
[2014] [internal quotation marks and citations omitted]; see
Matter of LaFountain v Gabay, 69 AD3d 994, 995 [2010]). We will
not disturb the trial court's determination in this regard,
unless it lacks a sound and substantial basis in the record (see
Matter of Joshua UU. v Martha VV., 118 AD3d 1051, 1052 [2014];
Matter of Claflin v Giamporcaro, 75 AD3d 778, 780 [2010], lv
denied 15 NY3d 710 [2010]).

      In a detailed and well-reasoned decision, Supreme Court
concluded that, while both parents love and care for the child,
her best interests would be served by awarding sole custody to
the mother because she was more attuned to the true issues facing
the child, while the father seemed to believe that the child's
only problems stemmed from the mother's parenting style. The
record makes clear that the child has a history of emotional and
behavioral issues and has been diagnosed with, among other
things, attention deficit hyperactivity disorder, intermittent
explosive disorder and mild depression. According to testimony
given by mental health professionals who have treated the child,
the mother is "incredibly supportive and cooperative," responsive
to the child's needs, and has diligently tried to implement a
number of recommended parenting techniques to correct some of the
child's most difficult behavioral issues. The father, on the
other hand, has frequently disagreed with the advice of health
                                -4-                   516691

care professionals regarding the child, and his disruptive
conduct during the child's appointments caused a pediatrician to
discontinue treating her and resulted in the issuance of a court
order barring him from attending her therapy sessions.

      Although the attorney for the child advocated for an award
of sole custody to the father, we agree with Supreme Court that
the father's overly indulgent and permissive parenting style
appeared to be designed to earn the child's favor and undermine
the rules and expectations that the mother attempted to instill
in the child.2 Further, an award of sole custody to the father
would have required this fifth-grade student to transfer to her
fourth elementary school, a move that – as the record discloses –
would be detrimental to the child. Accordingly, we decline to
disturb Supreme Court's determination that the child's best
interests are served by awarding sole custody to the mother, as
it finds sound and substantial support in the record (see Matter
of Cornick v Floreno, 130 AD3d 1170, 1172 [2015]; Matter of
Shearer v Spisak, 90 AD3d 1346, 1348-1349 [2011]; Matter of Meier
v Meier, 79 AD3d 1295, 1296 [2010]).

        Garry, J.P., Lynch and Devine, JJ., concur.




    2
        While "a child's wishes, which must be expressed and
advocated by his or her attorney in a suitable manner, are
properly taken into account in determining the child's best
interests, [they] are not dispositive" (Matter of Colona v
Colona, 125 AD3d 1123, 1126 [2015] [internal citation omitted]).
                        -5-                  516691

ORDERED that the orders are affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
