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

621
CAF 10-00294
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


IN THE MATTER OF JASON L. BROTHERS,
PETITIONER-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HEATHER L. CHAPMAN, RESPONDENT-APPELLANT.


PETER J. DIGIORGIO, JR., UTICA, FOR RESPONDENT-APPELLANT.

ANTHONY CASALE, GLOVERSVILLE, FOR PETITIONER-RESPONDENT.


     Appeal from an order of the Family   Court, Herkimer County
(Anthony J. Garramone, J.H.O.), entered   December 15, 2009 in a
proceeding pursuant to Family Court Act   article 6. The order, inter
alia, granted the parties joint custody   of their child and granted
petitioner primary physical custody.

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

     Memorandum: Respondent mother appeals from an order that, inter
alia, granted in part the father’s cross petition seeking to modify a
prior order of custody and visitation by awarding him primary physical
custody of the parties’ child and visitation to the mother. “Although
Family Court erred in failing ‘to set forth those facts essential to
its decision’ . . ., ‘the record is sufficiently complete for us to
make our own findings of fact in the interests of judicial economy and
the well-being of the child[ ]’ ” (Matter of Williams v Tucker, 2 AD3d
1366, 1367, lv denied 2 NY3d 705). Based on our review of the record,
we conclude that the court properly modified the prior order of
custody and visitation.

     “It is well settled that ‘[a] party seeking a change in an
established custody arrangement must show a change in circumstances
[that] reflects a real need for change to ensure the best interest[s]
of the child’ ” (Matter of Moore v Moore, 78 AD3d 1630, 1630, lv
denied 16 NY3d 704; see Matter of Maher v Maher, 1 AD3d 987, 988-989).
“[A]mong the factors to consider in determining whether a change of
primary physical custody is warranted are the quality of the home
environment and the parental guidance the custodial parent provides
for the child . . ., the ability of each parent to provide for the
child’s emotional and intellectual development . . ., the financial
status and ability of each parent to provide for the child . . ., the
relative fitness of the respective parents, and the length of time the
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                                                         CAF 10-00294

present custody arrangement has been in effect” (Matter of Kristi L.T.
v Andrew R.V., 48 AD3d 1202, 1204, lv denied 10 NY3d 716 [internal
quotation marks omitted]; see Maher, 1 AD3d at 989).

     With respect to the first of those factors, including the quality
of the home environment, the evidence presented at the hearing
establishes that the mother has repeatedly changed residences.
Indeed, on one occasion, the mother returned to and left her estranged
husband within the period of one weekend. Further, at the time of the
hearing, the mother resided with a paramour who, based on testimony
presented at the hearing, has a significant history of domestic
violence and irrational behavior (see Matter of Stacey L.B. v Kimberly
R.L., 12 AD3d 1124, lv denied 4 NY3d 704). In contrast, the evidence
adduced at the hearing established that the father had a stable home
life.

     With respect to the second factor, i.e., the ability of each
parent to provide for the child’s emotional and intellectual
development, the record of the hearing established that the mother was
cognizant of the need to improve her parenting skills inasmuch as she
began attending parenting classes approximately two months before the
hearing. Her transient lifestyle, however, resulted in the child
attending three different schools within only a few years. Although
we agree with the court that the father should take a greater role in
the child’s education, the record of the hearing established that he
made arrangements for daycare and schooling in anticipation of
obtaining physical custody of the child, and he provided books and
toys for the child, spent time playing with him and took him to the
park.

     With respect to the third factor, i.e., the financial status and
ability of each parent to provide for the child, the evidence
presented at the hearing demonstrated that the father has a steady
income. The evidence further demonstrated, however, that the mother
had been unemployed for several years and that her income consisted
only of public assistance.

     With respect to the fourth factor, i.e., the relative fitness of
the respective parents and the length of time the present custody
arrangement has been in effect, the evidence presented at the hearing
established that the mother is a caring parent but that she is
committed to living with a paramour she knows to be potentially
dangerous and who has a history of domestic violence. The father,
however, has provided a safe home environment for the child.

     We further conclude that the mother failed to preserve for our
review her contention that the court erred in considering certain
police reports regarding her current paramour (see generally Matter of
Matthews v Matthews, 72 AD3d 1631, 1632, lv denied 15 NY3d 704). In
any event, any such error is harmless inasmuch as we engaged in an
independent review of the record and did not rely on those reports in
reaching our determination (see generally id.). Even assuming,
arguendo, that we agree with the mother that the court erred in
considering certain probation reports that were not admitted in
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                                                         CAF 10-00294

evidence, we conclude that such error is also harmless inasmuch as we
did not consider those probation records in reaching our determination
(see generally id.).




Entered:   April 29, 2011                      Patricia L. Morgan
                                               Clerk of the Court
