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

1055
CAF 10-02457
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GREEN, JJ.


IN THE MATTER OF ANTWAN WALKER,
PETITIONER-RESPONDENT,

                    V                               MEMORANDUM AND ORDER

JAMIKA CAMERON, RESPONDENT-APPELLANT.


CHARLES J. GREENBERG, BUFFALO, FOR RESPONDENT-APPELLANT.

REBECCA J. TALMUD, ATTORNEY FOR THE CHILD, WILLIAMSVILLE, FOR ANTWAN
E.W., JR.

MELISSA A. CAVAGNARO, ATTORNEY FOR THE CHILD, BUFFALO, FOR DIAMOND S.
W.


     Appeal from an order of the   Family Court, Erie County (Sharon M.
LoVallo, A.J.), entered December   16, 2010 in a proceeding pursuant to
Family Court Act article 6. The    order, inter alia, granted primary
physical custody of the parties’   children to petitioner.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the petition is
dismissed.

     Memorandum: Respondent mother appeals from an order that, inter
alia, granted the petition seeking to modify the custody and
visitation provisions of the judgment of divorce by awarding primary
physical custody of the parties’ children to petitioner father. We
note at the outset that the mother failed to include in the record on
appeal the judgment of divorce. “Although [such an] ‘omission . . .
ordinarily would result in dismissal of the appeal . . ., there is no
dispute’ ” concerning the custody provisions contained in the
judgment, and we therefore reach the merits (Matter of Carey v
Windover, 85 AD3d 1574, 1574; see Matter of Dann v Dann, 51 AD3d 1345,
1346-1347).

     We agree with the mother that Family Court erred in awarding
primary physical custody of the parties’ children to the father. Even
assuming, arguendo, that the father made “ ‘a sufficient evidentiary
showing of a change in circumstances to require a hearing on the issue
whether the existing custody [provisions] should be modified’ ”
(Matter of Hughes v Davis, 68 AD3d 1674, 1675), we nevertheless
conclude that it is in the best interests of the children for primary
physical custody to remain with the mother (see generally Matter of
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                                                         CAF 10-02457

Louise E. S. v W. Stephen S., 64 NY2d 946, 947). The record
establishes that the mother has been the children’s primary caregiver
throughout their lives (see Sitts v Sitts, 74 AD3d 1722, 1723). In
addition, the record establishes that the children have a close
relationship with the half sibling residing in the mother’s home.
Although “the presence of [a] half sibling[] . . . is not dispositive,
. . . it is a factor to be considered in making custody
determinations” (Matter of Slade v Hosack, 77 AD3d 1409; see Eschbach
v Eschbach, 56 NY2d 167, 173). We therefore reverse the order and
dismiss the petition.




Entered:   October 7, 2011                     Patricia L. Morgan
                                               Clerk of the Court
