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

1132
CAF 11-00654
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND VALENTINO, JJ.


IN THE MATTER OF YASIN TISDALE,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

JUDY ANDERSON, RESPONDENT-APPELLANT.
(APPEAL NO. 1.)


MINDY L. MARRANCA, BUFFALO, FOR RESPONDENT-APPELLANT.

CHARLES J. GREENBERG, AMHERST, FOR PETITIONER-RESPONDENT.

MARY ANNE CONNELL, ATTORNEY FOR THE CHILDREN, BUFFALO, FOR NASIR Y.T.
AND NADIA S.-Y.T.


     Appeal from an order of the Family Court, Erie County (Kevin M.
Carter, J.), entered February 7, 2011 in a proceeding pursuant to
Family Court Act article 6. The order granted petitioner sole custody
of the parties’ children.

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

     Memorandum: Yasin Tisdale, the petitioner in appeal No. 1 and
the respondent in appeal No. 2 (father), commenced the proceeding in
appeal No. 1 pursuant to Family Court Act article 6 seeking to modify
the custody provisions in a prior order by awarding him sole custody
of the parties’ two children. Judy Anderson, the respondent in appeal
No. 1 and the petitioner in appeal No. 2 (mother), filed the petition
in appeal No. 2 seeking sole custody of the children. By the order in
appeal No. 1, Family Court granted the father’s request for a
temporary change in the residence of the children with the mother in
New York to the father in Virginia and determined, following a full
evidentiary hearing, that it was in the children’s best interests that
the father have sole custody and that they reside with him in
Virginia. By the order in appeal No. 2, the court dismissed the
mother’s petition.

     Even assuming, arguendo, that the court erred in appeal No. 1 by
granting the father’s request for a temporary change in the physical
residence of the children without conducting an evidentiary hearing,
we conclude that any such error is harmless because the court
subsequently conducted the requisite hearing (see Matter of Owens v
Garner, 63 AD3d 1585, 1585-1586; Matter of Darryl B.W. v Sharon M.W.,
                                 -2-                         1132
                                                        CAF 11-00654

49 AD3d 1246, 1247).

     With respect to the court’s custody determination in appeal Nos.
1 and 2, we conclude that “[t]he mother . . . failed to preserve for
our review her contention that the father failed to establish a change
of circumstances warranting review of the prior order” (Matter of
Canfield v McCree, 90 AD3d 1653, 1654; see Matter of Deegan v Deegan,
35 AD3d 736, 736-737). We note in any event that, “in her petition,
the mother alleged that there had been such a change of circumstances”
(Stilson v Stilson, 93 AD3d 1222, 1223). Contrary to the mother’s
further contention, there is a sound and substantial basis in the
record to support the court’s determination following the hearing that
it was in the children’s best interests to award sole custody to the
father, and thus that determination will not be disturbed (see
Capodiferro v Capodiferro, 77 AD3d 1449, 1450; Owens, 63 AD3d at 1586;
Wideman v Wideman, 38 AD3d 1318, 1319).




Entered:   November 16, 2012                   Frances E. Cafarell
                                               Clerk of the Court
