                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: January 5, 2017                    522356
_________________________________

In the Matter of RICHARD Y.,
                    Respondent,
      v

VANESSA Z.,                                  MEMORANDUM AND ORDER
                     Appellant.

(And Another Related Proceeding.)
_________________________________


Calendar Date:    November 22, 2016

Before:    Garry, J.P., Egan Jr., Rose, Clark and Mulvey, JJ.

                              __________


     Lawrence Brown, Bridgeport, for appellant.

     Christopher Hammond, Cooperstown, for respondent.

     Marion J. Cerio, Canastota, attorney for the children.

                              __________


Rose, J.

      Appeal from an order of the Family Court of Madison County
(McDermott, J.), entered December 28, 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 unmarried parents of a son (born
in 2004) and a daughter (born in 2005). Pursuant to a stipulated
custody order entered in 2010, the mother was awarded sole legal
and physical custody of the children and the father was provided
with a schedule of visitation. In 2014, the father commenced the
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first of these modification proceedings seeking sole legal and
physical custody of the children, alleging, among other things,
that the mother and children had been "kicked out" of a domestic
violence shelter and that the children had not been to school in
two to four weeks. Thereafter, the mother commenced the second
of these proceedings seeking to modify the transportation
arrangement concerning the father's visitation time. Following a
fact-finding hearing, Family Court awarded sole legal and
physical custody to the father and visitation to the mother. The
mother now appeals.

      We are unpersuaded by the mother's contention that the
father failed to establish a change in circumstances warranting a
review of the children's best interests. The father's proof
established that, since the entry of the prior order, the mother
had left an abusive relationship, moved into a shelter with the
children and was subsequently asked to leave the shelter when she
was allegedly caught visiting the abusive ex-boyfriend. The
mother then moved in with a new boyfriend, resulting in the
children moving to a new school district and missing
approximately three weeks of school. In addition, the son found
marihuana in the new boyfriend's jacket, and the father's
attempts to address other issues concerning the new boyfriend's
behavior toward the children have been met with consistent
denials by the mother. This proof, coupled with evidence of a
breakdown of meaningful communication between the parties,
established a change in circumstances warranting an inquiry into
the best interests of the children (see Matter of Paul A. v
Shaundell LL., 117 AD3d 1346, 1348 [2014], lv dismissed and
denied 24 NY3d 937 [2014]; Matter of Gasparro v Edwards, 85 AD3d
1222, 1223 [2011]).

      In reviewing Family Court's custody determination, we
accord great deference to its factual findings and assessments of
credibility, "and we will not disturb its determination unless it
lacks a sound and substantial basis in the record" (Matter of
Williams v Patinka, 144 AD3d 1432, 1433-1434 [2016] [internal
quotation marks and citation omitted]; see Matter of Bradley D. v
Andrea D., 144 AD3d 1417, 1419 [2016]; Matter of Burnett v
Andrews-Dyke, 140 AD3d 1346, 1348 [2016]). The evidence adduced
at the fact-finding hearing established that, despite being
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previously subject to a neglect proceeding regarding unsanitary
living conditions and engaging in domestic violence in the
children's presence, the mother continues to have contact with
her abusive ex-boyfriend and recently allowed maggots to fester
on unwashed dishes in her home. In addition, the daughter has
had repeated bouts with head lice, and Family Court found that
this problem likely stems from the mother's unsanitary home. As
for her living situation, the mother had been seeing the new
boyfriend for only a very brief period of time before she moved
herself and the children in with him and, by all accounts, he is
an unemployed alcoholic who continues to consume alcohol, suffers
from seizures and smokes marihuana on a daily basis. Despite
this, and because the mother is away at work for long periods of
time, she leaves the children in his care. Significantly, the
children have had conflicts with the new boyfriend and, after
becoming upset with the son, the boyfriend threatened to evict
the mother and the children from his home. In addition, the
mother admitted that the children have seen her and the new
boyfriend nude on the living room couch after they engaged in
"adult time."

      Although the father has his own share of shortcomings, the
record amply reflects that he is more able to provide a
nurturing, safe and stable home environment for the children.
Further, we reject the mother's contention that Family Court
placed too much weight on the position of the attorney for the
children in favor of transferring custody to the father (see
Matter of Colona v Colona, 125 AD3d 1123, 1126 [2015]). Thus,
after according the appropriate deference to Family Court, we
conclude that the determination to award the father sole legal
and physical custody is supported by a sound and substantial
basis in the record (see Matter of Pena v Lopez, 140 AD3d 967,
968-969 [2016]; Matter of Colona v Colona, 125 AD3d at 1126).

     Garry, J.P., Egan Jr., Clark and Mulvey, JJ., concur.
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ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
