           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
1228
CAF 10-01945
PRESENT: SCUDDER, P.J., CARNI, LINDLEY, SCONIERS, AND GREEN, JJ.


IN THE MATTER OF HOWARD G. MESSIMORE,
PETITIONER-APPELLANT,

                     V                            MEMORANDUM AND ORDER

STACY M. MESSIMORE, RESPONDENT-RESPONDENT.


CONBOY, MCKAY, BACHMAN & KENDALL, LLP, WATERTOWN (KRYSTAL A. RUPERT OF
COUNSEL), FOR PETITIONER-APPELLANT.

TYSON BLUE, CANANDAIGUA, FOR RESPONDENT-RESPONDENT.

SUSAN A. SOVIE, ATTORNEY FOR THE CHILD, WATERTOWN, FOR NATALEIGH M.M.


     Appeal from an order of the Family Court, Jefferson County
(Richard V. Hunt, J.), entered September 9, 2010 in a proceeding
pursuant to Family Court Act article 6. The order, among other
things, ordered that respondent is to have primary physical custody of
the subject child.

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

     Memorandum: Petitioner father commenced this proceeding seeking
to modify the existing custody provisions in the judgment of divorce,
which was entered while he was deployed overseas with the United
States Army, by awarding him primary physical custody of the parties’
child. We agree with the father that his return from deployment
constituted a change in circumstances warranting review of the
existing custody arrangement (see Family Ct Act § 651 [f] [3]).
Contrary to the father’s contention, however, we conclude that Family
Court did undertake such a review in light of the change in
circumstances. The court held an evidentiary hearing, during which
witnesses were called by both parties, conducted an in camera
interview with the parties’ child and thereafter made a determination
based upon the best interests of the child (cf. Matter of Hughes v
Davis, 68 AD3d 1674). Contrary to the further contention of the
father, we conclude that the court’s determination that the best
interests of the child are served by continuing primary physical
custody with respondent mother is supported by a sound and substantial
basis in the record (see Matter of McLeod v McLeod, 59 AD3d 1011).

Entered:   November 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
