                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 26, 2015                    517627
________________________________

In the Matter of EDWARD D.
   KENT JR.,
                    Appellant,
      v                                      MEMORANDUM AND ORDER

SUMMERS ORDWAY,
                    Respondent.
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Calendar Date:    January 12, 2015

Before:   McCarthy, J.P., Lynch, Devine and Clark, JJ.

                              __________


     Emily Karr Cook, Elmira, for appellant.

     Pamela D. Gee, Elmira, attorney for the child.

                              __________


Devine, J.

      Appeal from an order of the Family Court of Chemung County
(Argetsinger, J.H.O.), entered August 14, 2013, which granted
petitioner's application, in a proceeding pursuant to Family Ct
Act article 6, to modify a prior order of custody.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the unmarried parents of a son (born
in 1998). Family Court entered a consent order in 2007 which
granted the parties joint legal and physical custody of the child
and established a visitation schedule. Years later, the father
commenced this modification proceeding seeking primary physical
custody of the child. After conducting a fact-finding hearing
and a Lincoln hearing with the child, Family Court issued an
order which, among other things, modified the parties' visitation
schedule. This appeal by the father ensued.
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      "An alteration of an established custody arrangement
requires a showing of a change in circumstances reflecting a real
need for change in order to insure the continued best interest[s]
of the child[ren]" (Matter of Tod ZZ. v Paula ZZ., 113 AD3d 1005,
1006 [2014] [internal quotation marks and citation omitted]; see
Matter of Clark v Hart, 121 AD3d 1366, 1367 [2014]; Matter of
Meier v Meier, 79 AD3d 1295, 1295 [2010]). Inasmuch as the child
allegedly expressed his desire to live primarily with the father
due to, among other things, the obligation that was placed on him
to care for a younger sibling while the mother was at work,
including during evening and overnight hours, this matter
presents the requisite change in circumstances that would allow
for a modification of the prior custody order despite Family
Court's failure to expressly make such a finding (see Matter of
Whitcomb v Seward, 86 AD3d 741, 742 [2011]; Matter of Meier v
Meier, 79 AD3d at 1295).

      The father and the attorney for the child assert that
Family Court's order allocating custody equally between the
parties did not properly account for the child's best interests.
In conducting a best interests evaluation, the court must
consider several factors when making a custody determination,
including "'maintaining stability in the child's life, the wishes
of the child, the quality of the home environment, each parent's
past performance, relative fitness and ability to guide and
provide for the child's intellectual and emotional development,
and the effect the award of custody to one parent would have on
the child's relationship with the other'" (Matter of Cornell v
Cornell, 8 AD3d 718, 719 [2004], quoting Matter of Fletcher v
Young, 281 AD2d 765, 767 [2001]; see Matter of Virginia C. v
Donald C., 114 AD3d 1032, 1033 [2014]).

      Here, Family Court continued the previous award of joint
legal and shared physical custody, but modified the preexisting
physical custody schedule in a manner that afforded the parties
an opportunity to work cooperatively to make scheduling
adjustments, when necessary. The court's order further
implemented various scheduling restrictions and requirements,
including that the child's primary physical residence be with the
father "for school purposes," that custody would remain with the
father while the mother worked evening shifts, that the mother
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would have custody on those days that she was not working, as
well as days when she was working overnight shifts "provided that
she has a responsible adult present in the home overnight with
the child" and, further, that the child not be required to
babysit his younger sibling "except for brief periods of time,
and with [the child's] consent." The court emphasized that, in
constructing its order, the child's best interests were of
paramount importance.

      During the fact-finding hearing, Family Court heard
evidence indicating that the child had expressed a desire to live
with the father because there were more activities available to
him at his father's residence and his mother's work schedule
often left him responsible for caring for his younger, allegedly
unruly sister. Further, while there was testimony regarding the
mother's prior indiscretions and that she would drive her vehicle
with a suspended driver's license, among other purported
shortcomings, the court properly concluded that she was a caring
parent who was adequately equipped to raise the child. The
mother averred that she had not engaged in any illegal drug use
for several years and had made child-care arrangements for her
younger daughter so that the child would no longer have to
provide overnight supervision. Both parties indicated that they
would foster the child's relationship with the other parent. As
the court's modification of the custodial arrangement has a sound
and substantial evidentiary basis and is in the best interests of
the child, we see no reason to make any alteration to its order
(see Matter of Joseph WW. v Michelle WW., 118 AD3d 1054, 1057
[2014]; Matter of Joshua UU. v Martha VV., 118 AD3d 1051, 1052
[2014]; Matter of Virginia C. v Donald C., 114 AD3d at 1036).

     McCarthy, J.P., Lynch and Clark, JJ., concur.
                        -4-                  517627

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
