                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 2, 2015                       519284
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In the Matter of CHRISTINA
   FOUNTAIN,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

JOSEPH FOUNTAIN,
                    Appellant.
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Calendar Date:    April 21, 2015

Before:    Lahtinen, J.P., McCarthy, Garry and Rose, JJ.

                              __________


     Michelle I. Rosien, Philmont, for appellant.

     Jessica C. Eggleston, Saratoga Springs, for respondent.

     Lynne Ackner, Glens Falls, attorney for the child.

                              __________


Rose, J.

      Appeal from an order of the Family Court of Clinton County
(Lawliss, J.), entered June 3, 2014, 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 mother) and respondent
(hereinafter the father) are the separated parents of a child
born in 2009. Following their separation, they entered into a
custody order on consent that granted them joint legal custody
and shared physical custody of the child. When an incident of
domestic violence occurred between the father and his live-in
girlfriend while the child was in his physical custody, the
mother commenced this modification proceeding seeking sole legal
                              -2-                519284

and physical custody. A fact-finding hearing was then held and
Family Court granted the mother's petition in its entirety,
providing the father with visitation two out of every three
weekends. The father appeals.

      In order to justify modification of the custody order, the
mother was required to establish a change in circumstances
"reflecting a real need for change in order to insure the
continued best interests of the child" (Matter of Greene v
Robarge, 104 AD3d 1073, 1075 [2013]; accord Matter of Virginia C.
v Donald C., 114 AD3d 1032, 1033 [2014]; see Matter of Parchinsky
v Parchinsky, 114 AD3d 1040, 1041 [2014]). Here, the record
reflects that, although the child did not witness the domestic
violence incident, she witnessed the father's arrest and was
visibly upset when the mother arrived to retrieve her that same
night. The mother testified that the father's house was in
disarray, multiple police officers were on the scene and the
child's hair was checked by an officer to ensure there was no
broken glass in it. The father spent the night in jail and later
pleaded guilty to harassment in the second degree. An order of
protection was entered against him and he was ordered to attend a
violence intervention program. As a result of the order of
protection, the father was required to move out of the
girlfriend's residence, and he spent time moving between various
family members before eventually reconciling with the girlfriend
and moving back in with her. Although the father and girlfriend
downplayed the domestic violence incident, claiming that the
father merely threw the girlfriend's cell phone and pushed her,
Family Court did not find them to be credible. Deferring to
Family Court's credibility determinations (see Matter of Brady v
Schermerhorn, 25 AD3d 1037, 1038 [2006]; Matter of Drew v Gillin,
17 AD3d 719, 721 [2005]), its conclusion that a change in
circumstances occurred based on the domestic violence incident
and the father's lack of stable housing is supported by a sound
and substantial basis in the record (see Matter of Hayward v
Campbell, 104 AD3d 1000, 1000-1001 [2013]; Matter of Hamilton v
Anderson, 99 AD3d 1077, 1078 [2012]; Matter of Starkey v
Ferguson, 80 AD3d 799, 801 [2011]).

      We also find a sound and substantial basis for Family
Court's determination that an award of primary physical custody
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to the mother was in the child's best interests based on the
stability offered by the mother's living situation, the father's
history of domestic violence and his failure to attend the
violence intervention program (see Matter of Carr v Stebbins, 123
AD3d 1164, 1164 [2014]; Matter of Hamilton v Anderson, 99 AD3d at
1079; Matter of Bishop v Livingston, 296 AD2d 602, 604 [2002]).
Although the father contends that Family Court improperly
questioned him about his living situations and his relationship
with his girlfriend, these questions were appropriately limited
to the relevant issues and intended to clarify the testimony (see
Matter of Carr v Stebbins, 123 AD3d at 1165; Matter of Borggreen
v Borggreen, 13 AD3d 756, 757 [2004]).

      Finally, deferring to Family Court's factual findings, we
agree with its determination that, given the father's history of
domestic violence against the mother and his failure to make
affirmative efforts to control his abusive behavior, joint
custody would be inappropriate and not in the child's best
interests (see Matter of Brown v Akatsu, 125 AD3d 1163, 1166
[2015]; Matter of Drew v Gillin, 17 AD3d at 721; Matter of
Spencer v Small, 263 AD2d 783, 785 [1999]).

     Lahtinen, J.P., McCarthy and Garry, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
