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

426
CAF 15-01709
PRESENT: WHALEN, P.J., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.


IN THE MATTER OF FRANK L. STANTON,
PETITIONER-RESPONDENT,

                    V                               MEMORANDUM AND ORDER

NINA M. KELSO, RESPONDENT-APPELLANT.


BRIDGET L. FIELD, ROCHESTER, FOR RESPONDENT-APPELLANT.

BRIAN P. DEGNAN, ATTORNEY FOR THE CHILD, BATAVIA.


     Appeal from an order of the Family Court, Genesee County (Eric R.
Adams, J.), entered June 4, 2015 in a proceeding pursuant to Family
Court Act article 6. The order, inter alia, granted petitioner
primary physical custody of the parties’ child.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Respondent mother appeals from an order that
continued joint custody of the parties’ son but transferred primary
physical custody of the child to petitioner father, with visitation to
the mother. Where, as here, the parties’ existing custody arrangement
is based on a consent order, which is “entitled to less weight than a
disposition after a plenary trial” (Matter of Alexandra H. v Raymond
B. H., 37 AD3d 1125, 1126 [internal quotation marks omitted]), Family
Court “cannot modify that order unless a sufficient change in
circumstances--since the time of the stipulation--has been
established, and then only where a modification would be in the best
interests of the child[ ]” (Matter of Hight v Hight, 19 AD3d 1159,
1160 [internal quotation marks omitted]; see Matter of Stevenson v
Smith, 145 AD3d 1598, 1599). The court’s determination in a custody
matter “ ‘is entitled to great deference and will not be disturbed
where’ . . . it is based on a careful weighing of appropriate factors”
(Stevenson, 145 AD3d at 1598; see Matter of Pinkerton v Pensyl, 305
AD2d 1113, 1113-1114).

     Contrary to the mother’s contention, we conclude that the father
established the requisite change in circumstances since the entry of
the consent order, namely, the child’s repeated changes of schools,
his recent attendance at a school in the district where the father
resides, and the parents’ inability to agree on where their child
should attend school (see Sequeira v Sequeira, 105 AD3d 504, 505, lv
denied 21 NY3d 1052; see generally Pecore v Blodgett, 111 AD3d 1405,
                                 -2-                           426
                                                         CAF 15-01709

1406, lv denied 22 NY3d 864). We further conclude that there is a
sound and substantial basis in the record for the determination that
it is in the child’s best interests to change his primary physical
residence from the mother’s house to the father’s house in connection
with the child’s school enrollment (see Stevenson, 145 AD3d at 1599;
see generally Matter of Tuttle v Tuttle, 137 AD3d 1725, 1726).

     We note that the mother at oral argument withdrew her contentions
that the court erred in failing to conduct, and that her counsel was
ineffective in failing to seek, a Lincoln hearing (see Matter of
Lincoln v Lincoln, 24 NY2d 270, 271-274). We have considered the
mother’s remaining claim of ineffective assistance of counsel, and we
conclude that it is without merit (see Matter of Bennett v Abbey, 141
AD3d 882, 884; Matter of Thompson v Gibeault, 305 AD2d 873, 875).




Entered:   March 31, 2017                       Frances E. Cafarell
                                                Clerk of the Court
