                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 8, 2015                   516855
________________________________

In the Matter of HARVEY J.
   SHERWOOD,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

DESIREE BARROWS,
                    Appellant.
________________________________


Calendar Date:   November 18, 2014

Before:   Lahtinen, J.P., McCarthy, Rose, Egan Jr. and Clark, JJ.

                             __________


     Diane V. Bruns, Ithaca, for appellant.

     Abbie Goldbas, Utica, for respondent.

     Susan B. McNeil, Ithaca, attorney for the child.

                             __________


McCarthy, J.

      Appeal from an order of the Family Court of Tompkins County
(Sherman, J.), entered May 10, 2013, which granted 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) have one child in common (born in 2004).
An October 2011 order continued joint custody and primary
placement with the mother, and provided for visitation with the
father every weekend. The father filed a modification petition,
which he amended twice, seeking sole custody. Following a
hearing, Family Court awarded sole custody to the father and
provided visitation to the mother. The mother appeals.
                               -2-                516855

      We affirm. A parent seeking modification of a custody
order must demonstrate a sufficient change in circumstances since
the entry of the prior order so as to justify a modification of
that order to serve the child's best interests (see Matter of
Opalka v Skinner, 81 AD3d 1005, 1005-1006 [2011]; Matter of Siler
v Wright, 64 AD3d 926, 928 [2009]). Shortly after the entry of
the October 2011 order, the mother and her paramour ended their
relationship, so she and her children1 moved out of the
paramour's residence and into a friend's home. The mother went
to Tennessee for a modeling shoot and left the children with her
friend for more than two weeks. On that trip, the mother was in
a car accident in Ohio. She returned to New York for
approximately one day to retrieve her children, then headed back
to Ohio. During that one day, Family Court issued an order to
show cause prohibiting the mother from removing the children from
the state. It appears that the mother was aware that such an
order was being sought and was imminent, but she testified that
she did not become aware that it was actually issued until later
that day at a time when she had already left the state. She
remained in Ohio for approximately 10 days thereafter, during
which time she got married. A few days after returning to New
York, she filed an affidavit indicating her desire to relocate to
Ohio with her children, to be with her new husband. Shortly
thereafter, she realized that her marriage was a mistake and
moved back in with her paramour, who – by the time of the hearing
– she intended to marry as soon as she obtained a divorce from
her husband. While the mother and child were in Ohio, the child
missed his visitation with the father and almost two weeks of
school. This situation constituted a sufficient change in
circumstances for the court to reevaluate the custody
arrangement.

      Both parties testified regarding their poor communication
and relationship, calling the efficacy of joint custody into
question (see Matter of Williams v Williams, 66 AD3d 1149, 1150-
1151 [2009]). The record supports Family Court's determination
that the mother created instability in the child's living
arrangements and schooling, and disregarded the father's


    1
        The mother has another child with a different father.
                              -3-                  516855

visitation rights. On the other hand, the father had steady
employment, had resided with his family for several years and,
although he had a disability that prevented him from being able
to read, he helped the child with math and other projects, and
the grandmother helped the child with reading. Despite some
faults on the father's part, he provided greater stability for
the child. Under the circumstances, we will not disturb the
court's determination awarding the father sole custody (see
Matter of Tod ZZ. v Paula ZZ., 113 AD3d 1005, 1006-1007 [2014];
Matter of Wilson v Hendrickson, 88 AD3d 1092, 1094-1095 [2011];
Matter of Meier v Meier, 79 AD3d 1295, 1296 [2010]).

     Lahtinen, J.P., Rose, Egan Jr. and Clark, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
