                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 16, 2015                     518959
________________________________

In the Matter of NATHANIEL
   SHOKRALLA,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

ICELEE BANKS,
                    Respondent.
________________________________


Calendar Date:   June 1, 2015

Before:   Lahtinen, J.P., Lynch, Devine and Clark, JJ.

                             __________


     John Ferrara, Monticello, for appellant.

     Jane M. Bloom, Monticello, for respondent.

     Michael C. Ross, Bloomingburg, attorney for the children.

                             __________


Lahtinen, J.P.

      Appeal from an amended order of the Family Court of
Sullivan County (McGuire, J.), entered April 17, 2014, which
dismissed petitioner's application, in a proceeding pursuant to
Family Ct Act article 6, to modify a prior order of custody.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the unmarried parents of three
daughters (born in 2004, 2005 and 2008). In 2008, they separated
and, in 2011, the father petitioned for visitation, which
resulted in a consent order in March 2012 providing him with
                              -2-                518959

visitation one weekend per month.1 Ongoing hostility and lack of
cooperation by the parties led to a series of petitions
including, among others, the father seeking custody and the
mother asserting that the father violated the March 2012 order,
as well as also seeking to terminate the father's parenting time
based upon allegations of his conduct with the mother's adult
daughter from another relationship. Following a hearing, Family
Court dismissed many of the parties' petitions and, as relevant
on appeal, issued an amended order in April 2014 directing that
the mother have sole legal and physical custody with increased
parenting time for the father to include, among other things, all
weekends except the fourth weekend of each month. The father
appeals, arguing that Family Court improperly indicated a gender
preference of placing girls with their mother and also did not
give appropriate weight to the mother's acts in undermining his
relationship with the children.

      Modifying an existing custody order "requires a petitioner
to establish 'a change in circumstances reflecting a real need
for change in order to insure the continued best interest[s] of
the child[ren]'" (Matter of Twiss v Brennan, 82 AD3d 1533, 1534
[2011], quoting Matter of Robert SS. v Ashley TT., 75 AD3d 780,
781 [2010]). The change in circumstances element is not disputed
on appeal and, in any event, is supported by the record. Factors
pertinent to a best interests analysis include, among others,
"the relative fitness, stability, past performance, and home
environment of the parents, as well as their ability to guide and
nurture the children and foster a relationship with the other
parent" (Matter of Arieda v Aridea-Walek, 74 AD3d 1432, 1433
[2010] [internal quotation marks and citation omitted]). Family
Court's lengthy oral decision wandered at times to some matters
that had little, if any, relevance in a best interests analysis.
However, "our authority in custody cases 'is as broad as that of
the hearing court'" (Matter of Martin v Mills, 94 AD3d 1364, 1365
[2012], quoting Matter of Aylward v Bailey, 91 AD3d 1135, 1136
[2012]), and upon our independent review of the entire record –


    1
        Although the March 2012 order did not clearly set forth
physical custody to the mother, the parties do not contest that
she had such custody.
                              -3-                518959

while disregarding Family Court's comments on matters not
relevant in the best interests analysis – we find that there is
ample proof that placing legal and physical custody with the
mother was in the children's best interests.

      The mother has been the children's primary caregiver
throughout their lives and particularly after the parties
separated in 2008. The father acknowledged that he did not visit
the children for three years after separating from the mother
during a time when he was "try[ing] to find [him]self." Even
after he had resumed a relationship with the children in 2012, he
showed little active interest in or knowledge of their health
care or education. He lived in a two-bedroom apartment about 100
miles from where the mother resides. The father worked an all
night shift and, while at work, the children would have to be in
the care of one of his two nearby brothers, who were 19 and 23
years old.

      The mother clearly had exhibited some deficiencies of
concern, particularly regarding her lack of cooperation with the
father. Family Court had dealt severely with the mother on such
issue and, if she does not improve, it could be an important
factor if further proceedings ensue (see Matter of Dobies v
Brefka, 83 AD3d 1148, 1151 [2011]). However, there were also
concerns about the father's cooperation with the mother, as well
as his other actions. Significantly, the mother had provided a
stable home and adequate care for the children throughout their
lives. She was actively involved in their education, health care
and all important aspects of their daily lives. Both parties had
made some unwise decisions and had, at times, shown less than
stellar parenting skills. Nonetheless, upon consideration of the
entire record, as well as the transcripts from the Lincoln
hearings, the credible proof supports the custody and visitation
order as ultimately fashioned by Family Court. The remaining
arguments are unavailing.

     Lynch, Devine and Clark, JJ., concur.
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ORDERED that the amended order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
