                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 2, 2016                      521145
________________________________

In the Matter of STACEY I.
   COLEMAN,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

AUBREY A. MILLINGTON,
                    Appellant.
________________________________


Calendar Date:   April 28, 2016

Before:   McCarthy, J.P., Garry, Egan Jr., Devine and Aarons, JJ.

                             __________


     Tammy Arquette, Clifton Park, for appellant.

     Todd G. Monahan, Schenectady, for respondent.

     Alexandra G. Verrigni, Rexford, attorney for the child.

                             __________


Aarons, J.

      Appeal from an order of the Family Court of Schenectady
County (Powers, J.), entered May 12, 2015, which, among other
things, 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 separated parents of a daughter
(born in 2000). Under a 2006 custody order, the parties shared
joint legal custody of the child with the mother having primary
physical custody and the father having visitation with the child
on weekdays after school and for the last weekend of the month.
In 2013, the father commenced this modification proceeding
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seeking primary physical custody of the child. After fact-
finding and Lincoln hearings, Family Court awarded primary
physical custody of the child to the father and fashioned a
visitation schedule in which the mother would have visitation
every other weekend plus one weeknight in the intervening week
and additional time during the summer. The mother appeals. We
affirm.

      A party seeking a modification of an existing custody order
must first show that a change in circumstances exists, and once
this threshold showing is satisfied, the party must then
demonstrate that modification of the order ensures the best
interests of the child (see Matter of Schlegel v Kropf, 132 AD3d
1181, 1182 [2015]; Matter of Menhennett v Bixby, 132 AD3d 1177,
1179 [2015]). The existing order, even though in effect for
several years, is accorded less weight where, as here, it stems
from the parties' consent (see Matter of Dykstra v Bain, 127 AD3d
1516, 1517 [2015]; Matter of Colwell v Parks, 44 AD3d 1134, 1135
[2007]). While not determinative, the preferences of an older
and more mature child are relevant in determining whether a
change in circumstances exists (see Matter of Casarotti v
Casarotti, 107 AD3d 1336, 1337 [2013], lv denied 22 NY3d 852
[2013]). Family Court found that the mother allowed the house
where she resided with the child to deteriorate and become
uninhabitable. In this regard, there were plumbing issues that
resulted in water being shut off, broken smoke detectors, clutter
around the house, no electricity in parts of the house and no
functioning washer (see Matter of Palmatier v Carman, 125 AD3d
1139, 1139-1140 [2015]; Matter of Michael GG. v Melissa HH., 97
AD3d 993, 994 [2012]). After an investigation by Schenectady
County Child Protective Services, some of these conditions were
eventually rectified. Nevertheless, they existed for a
significant period of time such that the mother and the child had
to temporarily move in with the mother's aunt. Also, the child's
hygiene noticeably worsened and her mental health declined,
necessitating weekly counseling sessions. Furthermore, the
mother acknowledged in her testimony that the child indicated
that she wanted to live with the father. Under these
circumstances, we are satisfied that the father demonstrated a
sufficient change in circumstances to warrant a best interests
analysis (see Matter of Bailey v Blair, 127 AD3d 1274, 1275
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[2015]; Matter of Spraker v Watts, 41 AD3d 953, 954 [2007]).

      In determining the best interests of the child, various
factors are considered, including "maintaining stability for the
child[], the respective home environments, length of the current
custody arrangement, each parent's relative fitness and past
parenting performance, and willingness to foster a healthy
relationship with the other parent" (Matter of Chris X. v
Jeanette Y., 124 AD3d 1013, 1014 [2015] [internal quotation marks
and citation omitted]; see Matter of Hayward v Campbell, 104 AD3d
1000, 1001 [2013]). Although the mother is more involved than
the father with respect to the child's activities, education and
medical treatment, the father is able to provide a stable home
environment and meet the child's needs. Viewing the record in
its entirety, including the preferences of the child, who was 14
years old at the time of the hearing, the discussed housing
conditions and the very close relationship that the child has
with the paternal grandmother with whom she attends church, we
conclude that Family Court's determination of awarding the father
primary physical custody is supported by a sound and substantial
basis in the record (see Iacono v Iacono, 117 AD3d 988, 989
[2014]; Matter of Davis v Davis, 79 AD3d 1304, 1306-1307 [2010];
Matter of Rue v Carpenter, 69 AD3d 1238, 1240 [2010]; Matter of
Burch v Willard, 57 AD3d 1272, 1273 [2008]).1 We reach a similar
conclusion with respect to the visitation schedule fashioned by
Family Court given its discretion in this area (see Matter of
Hayward v Thurmond, 85 AD3d 1260, 1262 [2011]). While the
visitation schedule reduces the mother's time, she is still
afforded frequent and meaningful access to the child (see Matter
of Hills v Madrid, 57 AD3d 1175, 1177 [2008]).

      Finally, we disagree with the mother's argument that she
received the ineffective assistance of counsel. We reject the
mother's contention that she was prejudiced by her attorney's
failure to call certain witnesses to testify or to offer


    1
        We note that, while not determinative, Family Court's
determination is consistent with the position of the attorney for
the child (see Matter of Schnock v Sexton, 101 AD3d 1437, 1438, n
[2012]).
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particular documents into evidence. Furthermore, it is
speculative to conclude that such proof would have led to a more
favorable result for the mother (see Matter of Hurlburt v Behr,
70 AD3d 1266, 1267-1268 [2010], lv dismissed 15 NY3d 943 [2010];
Matter of Baker v Baker, 283 AD2d 730, 731 [2001], lv denied 96
NY2d 720 [2001]). Given that the mother's attorney effectively
cross-examined the father, obtained successful objections and
elicited testimony from the mother concerning her ability to care
for the child, we find that the mother received meaningful
representation (see Matter of Knight v Knight, 92 AD3d 1090, 1093
[2012]; Matter of Spiewak v Ackerman, 88 AD3d 1191, 1193 [2011];
Matter of Arieda v Arieda-Walek, 74 AD3d 1432, 1434 [2010]).

     McCarthy, J.P., Garry, Egan Jr. and Devine, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
