                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 2, 2016                      521050
________________________________

In the Matter of ANDREW L.,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

MICHELLE M.,
                    Appellant.
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Calendar Date:   April 27, 2016

Before:   Peters, P.J., Lahtinen, Garry, Clark and Mulvey, JJ.

                             __________


     Alena Van Tull, Binghamton, for appellant.

     Jessica C. Eggleston, Johnson City, for respondent.

     Pamela B. Bleiwas, Ithaca, attorney for the children.

                             __________


Mulvey, J.

      Appeal from an order of the Family Court of Broome County,
(Connerton, J.), entered April 29, 2015, 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 father) and respondent
(hereinafter the mother) are the parents of two children (born in
2000 and 2004). In April 2012, by stipulated order, the parties
had joint legal custody of the children, with physical custody to
the mother and specified periods of visitation to the father. In
March 2014, the father commenced this proceeding to modify that
order, seeking primary physical custody of the children based on
the allegation that the mother was hospitalized for psychiatric
treatment. Family Court granted a temporary order of physical
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custody to the father, pending a hearing on his petition.
Following a trial, Family Court granted the modification petition
by awarding the father primary physical custody, with specified
periods of unsupervised visitation to the mother; joint legal
custody was continued. The mother appeals.

      The mother's main contention on appeal is that Family Court
erred in finding that the father had demonstrated a change in
circumstances since the prior order sufficient to warrant a best
interests analysis. The father contends that the mother's mental
health episode in March 2014, which required the children to live
with him, constituted a change in circumstances, and that it was
in the best interests of the children for him to have physical
custody. The attorney for the children contends that the
mother's mental health deterioration constituted a change in
circumstances and, now that the children are settled into living
with the father, it would be in their best interests not to
uproot them.

      In a custody modification proceeding, "the party seeking to
modify an existing custodial arrangement . . . [is] required to
demonstrate, as a threshold, that there has been a change in
circumstances since the prior custody order . . . to warrant a
review of the issue of custody to ensure the continued best
interests of the children" (Matter of Harrell v Fox, 137 AD3d
1352, 1354 [2016] [internal quotation marks and citations
omitted]; see Matter of Hill v Dean, 135 AD3d 990, 994 [2016]).
"The threshold change in circumstances must be met even where, as
here, the parties stipulated to a custodial order" (Matter of
Bush v Miller, 136 AD3d 1238, 1239 [2016] [citation omitted]).
If this threshold is met, "[f]actors relevant to determining
whether a modification will serve the child[ren]'s best interests
include 'maintaining stability in [the children's lives], the
quality of the respective home environments, the length of time
the present custody arrangement has been in place, each parent's
past performance, relative fitness and ability to guide and
provide for [the children's] well-being, and the willingness of
each parent to foster a relationship with the other parent'"
(Matter of Hrostowski v Micha, 132 AD3d 1103, 1105 [2015],
quoting Matter of Clouse v Clouse, 110 AD3d 1181, 1183 [2013], lv
denied 22 NY3d 858 [2014]). "We accord great deference to Family
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Court's factual findings and credibility determinations given its
superior position to observe and assess the witnesses' testimony
and demeanor firsthand, and will not disturb its custodial
determination if supported by a sound and substantial basis in
the record" (Matter of Daniel TT. v Diana TT., 127 AD3d 1514,
1515 [2015] [citations omitted]).

      We find that the mother's mental health issues since the
prior order — which caused her to be absent for an extended
period of time and caused a significant upheaval in the
children's lives — constitute a change in circumstances
warranting a review of the custody agreement (see Matter of
LaRussa v Williams, 114 AD3d 1052, 1053 [2014]; Matter of Diffin
v Towne, 47 AD3d 988, 990-991 [2008], lv denied 10 NY3d 710
[2008]; Matter of Sloand v Sloand, 30 AD3d 784, 785 [2006];
Matter of Kamholtz v Kovary, 210 AD2d 813, 814 [1994]). Turning
to the best interests analysis, although the mother claimed that
the father interfered with her visitation, a claim which the
father contradicted, Family Court made no such factual finding.
Although the mother presented evidence that she did not present a
risk of harming herself or her children and that her mental
condition had stabilized, there was no evidence of her ability to
resume the responsibilities of primary custodian (see Matter of
Huehn v Huehn, 103 AD2d 884, 884-885 [1984]). Family Court
properly considered the stability of the father's home and the
disruption to the children's lives if the father were not awarded
primary physical custody (see Matter of Diffin v Towne, 47 AD3d
at 991; Matter of Gitchell v Gitchell, 165 AD2d 890, 895 [1990]).
Based on the foregoing, we find that there was a sound and
substantial basis in the record to support Family Court's
determination to award primary physical custody of the children
to the father. We have examined the mother's remaining
contentions, including those related to transportation for
visitation, and find them unpersuasive.

     Peters, P.J., Lahtinen, Garry and Clark, JJ., concur.
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ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
