                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: April 30, 2015                     518160
________________________________

In the Matter of MELANIE
   DYKSTRA,
                    Appellant,
      v
                                             MEMORANDUM AND ORDER
CHARLES BAIN JR.,
                     Respondent.

(And Another Related Proceeding.)
________________________________


Calendar Date:   March 26, 2015

Before:   Peters, P.J., Lahtinen, Rose and Devine, JJ.

                              __________


     Jeffrey L. Zimring, Albany, for appellant.

     D. Alan Wrigley, Cambridge, attorney for the child.

     Timothy M. Bulger, Greenwich, attorney for the child.

     Robert Malcolm Winn, Granville, attorney for the child.

                              __________


Lahtinen, J.

      Appeal from an order of the Family Court of Washington
County (Pritzker, J.), entered November 4, 2013, which, among
other things, partially granted petitioner's application, in two
proceedings 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 divorced parents of Ethan,
Duncan and Lillian (born in 1997, 1999 and 2003, respectively).
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Since their divorce in 2008, the parties have been involved in a
series of proceedings regarding the children. As relevant to
this appeal, in August 2010 the mother relocated about 100 miles
from the area where the children resided and thereafter she
sought modification of custody, which resulted in a May 2011
stipulated order providing for continued joint legal custody,
primary physical custody of all three children with the father
and a schedule of liberal parenting time for the mother. By
amended petition in February 2012, the mother sought to modify
the May 2011 order to grant her physical custody of all the
children. While the proceeding was pending, the parties agreed
that, consistent with the wishes of the two older children, the
mother would have physical custody of Ethan and the father would
have physical custody of Duncan. A trial then ensued regarding
the mother's request to be granted physical custody of Lillian.
In a detailed decision that included several significant
credibility determinations, Family Court, among other things,
dismissed the mother's petition with respect to Lillian. The
mother appeals.1

      "A parent seeking to modify an existing custody order bears
the burden of proving that there has been a sufficient change in
circumstances since the entry of that order warranting a
modification thereof in the child's best interests" (Matter of
Williams v Williams, 66 AD3d 1149, 1150 [2009] [internal
quotation marks, brackets and citations omitted]; see Matter of
Clarkson v Clarkson, 98 AD3d 1208, 1209 [2012]). "Family Court's
findings and credibility determinations are accorded great
deference and will not be disturbed unless they lack a sound and
substantial basis in the record" (Matter of Bronson v Bronson, 63
AD3d 1205, 1206 [2009]; see Matter of Mabie v O'Dell, 48 AD3d
988, 989 [2008]). Considering first whether there was a change
in circumstances, many of the facts alleged in the mother's
petition regarding such issue pertained to Ethan. Nonetheless,
as noted by Family Court, the continued preference to live with


    1
        The mother's position is supported by the attorney for
Lillian and opposed by the attorney for Duncan. A brief was also
submitted supporting the mother by the attorney for Ethan, who,
during the time the appeal was pending, has turned 18.
                              -3-                518160

the mother openly expressed by Lillian – who turned 10 during the
hearing – received further support from James Merrigan, the
psychologist who conducted a court-requested evaluation of the
child. Moreover, the prior order had been entered on stipulation
(see Matter of Rosi v Moon, 84 AD3d 1445, 1446 [2011] ["a
consensual arrangement is afforded less weight than one ordered
by a court after a full hearing"]), and there had been no court
hearing regarding custody since the mother's move, which resulted
both in a greater distance between her and the children and also
in an apparently more stable living situation for her. There is
a sound and substantial basis supporting the finding of a change
in circumstances.

      In the best interests analysis, "courts are required to
consider all relevant factors, including maintaining stability in
the child's life, the wishes of the child, the quality of the
home environment, each parent's past performance, relative
fitness and ability to guide and provide for the child's
intellectual and emotional development, and the effect the award
of custody to one parent would have on the child's relationship
with the other" (Matter of Troy SS. v Judy UU., 69 AD3d 1128,
1131 [2010], lv dismissed and denied 14 NY3d 912 [2010] [internal
quotation marks and citation omitted]; accord Matter of Dobies v
Brefka, 83 AD3d 1148, 1151 [2011]). Family Court's credibility
determinations were important in its best interests analysis and
it found that the mother's testimony was "evasive, contrived and
lacked credibility at times," whereas the father's testimony was
considered "highly credible." The court then discussed a host of
pertinent factors, finding that most favored custody with the
father or were neutral. Deferring to those credibility
determinations, the record fully supports Family Court's analysis
and conclusions. Although Lillian openly expressed a wish to
live with her mother, she had a good relationship with both
parents and her preference could become a factor that receives
more weight as she grows older (see e.g. Matter of Rivera v
LaSalle, 84 AD3d 1436, 1439 [2011]). Of particular concern to
Family Court was the mother's apparent toxic influence on the
children regarding the father, a factor that we have stated is
"so inconsistent with the best interests of the children as to,
per se, raise a strong probability that the offending party is
unfit to act as custodial parent" (Matter of Dobies v Brefka, 83
                              -4-                  518160

AD3d at 1151 [internal quotation marks, brackets and citation
omitted]).

      The mother further argues that the order should be reversed
because the hearing was not completed within the time frame set
forth in 22 NYCRR 205.14. Although there was considerable delay
in completing the hearing, the mother did not object to the
scheduling at the time of the hearing and failed to establish
prejudice to her as a result of the delay.

     Peters, P.J., Rose and Devine, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
