                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 19, 2015                    517560
____________________________________

In the Matter of NATHAN COLONA,
                    Respondent,
      v
                                             MEMORANDUM AND ORDER
REBECCA COLONA,
                     Appellant.

(And Another Related Proceeding.)
____________________________________


Calendar Date:    January 7, 2015

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

                              __________


     James A. Mack, Binghamton, for appellant.

     Norbert Higgins, Binghamton, for respondent.

     John M. Scanlon, Binghamton, attorney for the children.

                              __________


Garry, J.

      Appeal from an order of the Family Court of Broome County
(Sullivan, J.H.O.), entered August 7, 2013, 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.

      The parties have two children (born in 2001 and 2005). In
2011, they stipulated to an order by which respondent
(hereinafter the mother) had sole custody, and petitioner
(hereinafter the father) had an established schedule for
parenting time with the children. In July 2012, the father took
the children from New York to his home in Colorado for a
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scheduled four-week period. Thereafter, the children remained in
Colorado, continuing to reside with their father, and attended
Colorado schools through the following school year. In May 2013,
the mother traveled to Colorado to retrieve the children and
bring them back to New York. The father filed motions for
temporary emergency jurisdiction and abduction prevention in a
Colorado court. That court declined to exercise temporary
emergency jurisdiction and enforced the New York custody order,
directing the father to allow the children to return to New York
with the mother. Shortly after the children returned to New
York, the father commenced the first of these proceedings seeking
modification of custody, and the mother commenced a proceeding to
modify visitation. Following fact-finding and Lincoln hearings,
Family Court, among other things, granted sole custody to the
father and placed the children with him during the school year,
established parenting time with the mother consisting of seven
weeks during the summer and other break and vacation time
throughout the year, directed the parties with regard to
transportation and contact, and retained jurisdiction relative to
the scheduling provisions for a two-year period. The mother
appeals.

      Family Court properly found that the father had
demonstrated a change in circumstances since the 2011 order
"reflecting a real need for change in order to insure the
continued best interests of the child" (Matter of Greene v
Robarge, 104 AD3d 1073, 1075 [2013]; see Matter of John O. v
Michele O., 103 AD3d 939, 941 [2013]). The parties disagree as
to why the children remained in Colorado following the father's
scheduled summer visitation, but the father testified that they
did so at the mother's request, and the court found this
testimony more credible than the mother's claim that she
reluctantly agreed to let them remain upon the father's
insistence. This Court defers to such assessments of credibility
(see Matter of Cobane v Cobane, 119 AD3d 995, 996 [2014]; Matter
of Yishak v Ashera, 90 AD3d 1184, 1185 [2011]). The record
reveals that the mother's life had become unstable around the
time of the children's departure for Colorado. She and the
children had previously lived with the maternal grandmother for
approximately five years. However, in March 2012, following an
altercation with the mother, the grandmother asked the mother to
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leave, lodged a complaint with law enforcement authorities and
obtained an order of protection against the mother. Thereafter,
child protective workers became involved and, as part of a safety
plan, the mother and children moved in with the mother's sister,
where they stayed until the children left for Colorado in July
2012. Shortly thereafter, the sister asked the mother to leave
because they were not getting along. The mother then moved to an
apartment where she resided until May 2013, when she returned to
the grandmother's home after retrieving the children from
Colorado. The mother testified that she moved back in with the
grandmother at the children's request, but from the testimony of
the grandmother and the father, it appeared that the grandmother
had insisted upon the move to protect the children after the
mother's paramour threatened the mother in the children's
presence.

      The father and his fiancee testified that the older child
did very well academically while residing with them in Colorado.
The younger child, who has special needs, received tutoring,
speech therapy and other assistance, and showed significant
academic and behavioral improvements. The fiancee further
testified that the children formed close bonds with her two
daughters from a prior relationship and her infant twin daughters
from her relationship with the father, who also resided in the
father's Colorado home. The instability of the mother's
lifestyle after March 2012, the children's physical separation
from the mother and their adjustment to the Colorado environment
were sufficient to demonstrate a change in circumstances
warranting an examination of their best interests (see Matter of
Hayward v Campbell, 104 AD3d 1000, 1000-1001 [2013]; Matter of
Starkey v Ferguson, 80 AD3d 799, 800-801 [2011]).

      Some of the factors relevant to an evaluation of the
children's best interests include the quality of the home
environments provided by each parent, their relative fitness and
ability to provide for the children's emotional and intellectual
development, and each parent's willingness to foster the
children's relationship with the other parent (see Matter of
Clouse v Clouse, 110 AD3d 1181, 1183 [2013], lv denied 22 NY3d
858 [2014]; Matter of Gasparro v Edwards, 85 AD3d 1222, 1223
[2011]). The father and his fiancee testified that the children
                              -4-                517560

maintained a regular daily schedule while residing with them that
involved chores, family dinner, homework and an 8:30 p.m.
bedtime. The father was in the process of buying his three-
bedroom home, where the children initially shared a bedroom with
each other, but later chose to share rooms with the fiancee's
older daughters, who were close to their ages. The fiancee and
father stated that they limited the children's exposure to media,
such as television and computers, and encouraged them to play
outside. The father stated that he supported the children's
relationship with their mother and, although he believed that the
older child, at 10, was too young for a cell phone, had bought
her a phone to enable the children to keep in close contact with
their mother.

      The father testified that the mother had demonstrated some
significant issues with alcohol during the period that the
children were residing with him; although the mother and her
witnesses denied such issues, Family Court credited the father's
testimony in this regard. In addition, the grandmother and the
mother's sister testified that they did not approve of the men
the mother associated with and that some of the men were unsafe
for the children to be around. The father further testified that
the children used vulgar language when they first moved in with
him and had to be taught not to do so.

      Contrary to the mother's contention, Family Court did not
err in considering circumstances that were no longer in existence
at the time of the hearing, as the court has broad discretion to
establish the parameters of proof and may consider any relevant
matter in evaluating a child's best interests (see Porcello v
Porcello, 80 AD3d 1131, 1134 [2011]; Matter of Gardner v Gardner,
69 AD3d 1243, 1244 [2010]). Considering the evidence as a whole
and according deference to the court's factual assessments and
credibility determinations, we find a sound and substantial basis
in the record for its determination that it was in the children's
best interests to transfer custody to the father (see Matter of
Paul A. v Shaundell LL., 117 AD3d 1346, 1349-1350 [2014], lv
dismissed and denied 24 NY3d 937 [2014]; Matter of Bush v Bush,
104 AD3d 1069, 1071-1072 [2013]).
                              -5-                  517560

      Finally, the mother contends that the attorney for the
children improperly advocated for his opinion of their best
interests rather than for the children's preferences, and that
Family Court improperly relied upon his recommendation. Notably,
a child's wishes, which must be expressed and advocated by his or
her attorney in a suitable manner (see 22 NYCRR 7.2 [d]), are
properly taken into account in determining the child's best
interests, but are not dispositive (see Porcello v Porcello, 80
AD3d at 1134; Matter of Torkildsen v Torkildsen, 72 AD3d 1405,
1407 [2010]). Here, the court made clear in its decision that it
did not place undue reliance upon the opinions expressed by the
attorney for the child. Upon review, we find that the record
provides an independent sound and substantial basis for the
court's decision, and we find no reason to disturb it.

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



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
