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

828
CAF 15-01161
PRESENT: PERADOTTO, J.P., CARNI, DEJOSEPH, NEMOYER, AND CURRAN, JJ.


IN THE MATTER OF KELIANN M. ELNISKI, ALSO KNOWN
AS KELIANN M. ARGY,
PETITIONER-RESPONDENT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ROBERT M. JUNKER,
RESPONDENT-PETITIONER-RESPONDENT.


KELIANN M. ARGY, ORCHARD PARK, FOR PETITIONER-RESPONDENT-APPELLANT.

MATTINGLY CAVAGNARO LLP, BUFFALO (MELISSA A. CAVAGNARO OF COUNSEL),
FOR RESPONDENT-PETITIONER-RESPONDENT.

PAMELA THIBODEAU, ATTORNEY FOR THE CHILD, WILLIAMSVILLE.


     Appeal from an order of the Family Court, Erie County (Mary G.
Carney, J.), entered June 27, 2014 in a proceeding pursuant to Family
Court Act article 6. The order, inter alia, modified a prior consent
order by awarding respondent-petitioner primary residential custody of
the parties’ child with visitation to petitioner-respondent.

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

     Memorandum: In this proceeding pursuant to Family Court Act
article 6, petitioner-respondent mother appeals from an order that,
inter alia, modified a prior consent order by awarding respondent-
petitioner father primary residential custody of the parties’ child
with visitation to the mother, and otherwise continued joint legal
custody. Contrary to the mother’s contention, we conclude that the
father met his burden of establishing a change in circumstances
sufficient to warrant an inquiry into whether a change in custody is
in the best interests of the child (see Matter of Tuttle v Tuttle, 137
AD3d 1725, 1725; Matter of Brewer v Soles, 111 AD3d 1403, 1403-1404;
Matter of Pecore v Blodgett, 111 AD3d 1405, 1405-1406, lv denied 22
NY3d 864; Matter of Simonds v Kirkland, 67 AD3d 1481, 1482). We also
conclude, contrary to the mother’s contention, that there is a sound
and substantial basis in the record to support Family Court’s
determination that it was in the child’s best interests to award the
father primary residential custody (see Matter of Mercado v Frye, 104
AD3d 1340, 1342, lv denied 21 NY3d 859).

     We reject the mother’s further contentions that the Attorney for
                                 -2-                           828
                                                         CAF 15-01161

the Child (AFC) was biased against her, and that the AFC failed to
provide meaningful representation and act in the child’s best
interests. Those contentions are not preserved for our review because
the mother made no motion to remove the AFC (see Matter of Juliet M.,
16 AD3d 211, 212; Matter of Nicole VV., 296 AD2d 608, 613, lv denied
98 NY2d 616) and, in any event, they are without merit (see Matter of
Swinson v Dobson, 101 AD3d 1686, 1687, lv denied 20 NY3d 862; Matter
of Aaliyah Q., 55 AD3d 969, 971; see generally 22 NYCRR 7.2 [d]).

     Finally, we reject the mother’s contention that she was denied
effective representation. The mother failed to “ ‘demonstrate the
absence of strategic or other legitimate explanations’ for counsel’s
alleged shortcomings,” and the record reflects that her counsel
provided meaningful representation (People v Benevento, 91 NY2d 708,
712; see Matter of Brandon v King, 137 AD3d 1727, 1728-1729, lv denied
27 NY3d 910).




Entered:   September 30, 2016                  Frances E. Cafarell
                                               Clerk of the Court
