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

57
CAF 15-01261
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, DEJOSEPH, AND CURRAN, JJ.


IN THE MATTER OF JACOB R. BELCHER,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

MONICA A. MORGADO, RESPONDENT-APPELLANT.


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

ASHLEY N. LYON, ATTORNEY FOR THE CHILD, ADAMS.


     Appeal from an order of the Family Court, Jefferson County (Peter
A. Schwerzmann, A.J.), entered July 9, 2015 in a proceeding pursuant
to Family Court Act article 6. The order, among other things, granted
custody of the subject child to petitioner.

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

     Memorandum: In this custody proceeding pursuant to Family Court
Act article 6, respondent mother appeals from an order, entered after
a hearing, that modified a prior order by awarding petitioner father
custody of the parties’ child. Contrary to the mother’s contention,
we conclude that the father established a change in circumstances
sufficient to warrant an inquiry into whether a change in custody is
in the best interests of the child (see Matter of Elniski v Junker,
142 AD3d 1392, 1392-1393; Matter of Schieble v Swantek, 129 AD3d 1656,
1657). The mother admitted at the hearing that she was arrested for
assault in the second degree and spent about two weeks in jail
following an incident with her former boyfriend that occurred with the
child asleep in the home (see Matter of Fountain v Fountain, 130 AD3d
1107, 1107-1108; Matter of Bell v Raymond, 67 AD3d 1410, 1411; see
generally Matter of Pecore v Blodgett, 111 AD3d 1405, 1405-1406, lv
denied 22 NY3d 864). Even accepting the assertion in the mother’s
brief that she was sentenced to time served and probation upon
pleading guilty to the assault charge subsequent to the custody
hearing, we reject her contention that the arrest has “no current
bearing” on this proceeding, inasmuch as the underlying incident is
plainly relevant to her fitness as a parent (see generally Matter of
Jeker v Weiss, 77 AD3d 1069, 1072-1073).

     Although Family Court should have made explicit findings
concerning the best interests of the child, the record is sufficiently
complete for us to make our own findings (see Matter of Howell v
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                                                         CAF 15-01261

Lovell, 103 AD3d 1229, 1231; Matter of Moore v Kazacos, 89 AD3d 1546,
1546, lv denied 18 NY3d 806), and we are satisfied that the award of
custody to the father is in the child’s best interests in view of the
evidence of domestic violence at the mother’s home (see Pecore, 111
AD3d at 1406; Matter of Brothers v Chapman, 83 AD3d 1598, 1599-1600,
lv denied 17 NY3d 707; cf. Schieble, 129 AD3d at 1657). Notably, the
court found the mother’s testimony that she no longer had any
relationship with her former boyfriend to be “not entirely credible,”
and we perceive no basis for disturbing that credibility determination
(see Matter of Sanchez v Rexhepi, 138 AD3d 869, 869; Howell, 103 AD3d
at 1231).




Entered:   February 3, 2017                     Frances E. Cafarell
                                                Clerk of the Court
