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

1162
CAF 12-01705
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


IN THE MATTER OF MELISA PECORE,
PETITIONER-RESPONDENT-RESPONDENT,

                    V                                MEMORANDUM AND ORDER

BRODY BLODGETT, RESPONDENT-PETITIONER-APPELLANT.


DAVIS LAW OFFICE PLLC, OSWEGO (STEPHANIE N. DAVIS OF COUNSEL), FOR
RESPONDENT-PETITIONER-APPELLANT.

LESLEY C. GERMANOW, FULTON, FOR PETITIONER-RESPONDENT-RESPONDENT.

TIMOTHY J. KIRWAN, ATTORNEY FOR THE CHILD, OSWEGO.


     Appeal from an order of the Family Court, Oswego County (Donald
E. Todd, A.J.), entered August 17, 2012 in a proceeding pursuant to
Family Court Act article 6. The order, among other things, awarded
petitioner-respondent sole legal and physical custody of the parties’
child.

     It is hereby ORDERED that the order so appealed from is
unanimously vacated on the law without costs, the cross petition of
respondent-petitioner is granted in part by awarding him primary
physical custody of the child, and the matter is remitted to Family
Court, Oswego County, to fashion a visitation schedule for petitioner.

     Memorandum: Petitioner-respondent mother commenced this
proceeding seeking to modify a prior order entered upon stipulation of
the parties, pursuant to which the parties had joint legal custody of
their child, with primary physical custody with the mother. The
mother sought an award of sole legal custody and respondent-petitioner
father cross-petitioned for sole legal and primary physical custody of
the child. The father appeals from an order that, inter alia, granted
the mother’s petition.

     Although an “existing [custody] arrangement that is based upon a
stipulation between the parties is entitled to less weight than a
disposition after a plenary trial” (Matter of Alexandra H. v Raymond
B.H., 37 AD3d 1125, 1126 [internal quotation marks omitted]), “[Family
Court] cannot modify [such an] order unless a sufficient change in
circumstances—since the time of the stipulation—has been established,
and then only where a modification would be in the best interests of
the child[]” (Matter of Hight v Hight, 19 AD3d 1159, 1160; see Matter
of York v Zullich, 89 AD3d 1447, 1448). As a general rule, the
                                 -2-                          1162
                                                         CAF 12-01705

custody determination of the trial court is entitled to great
deference (see Eschbach v Eschbach, 56 NY2d 167, 173-174), but “[s]uch
deference is not warranted . . . where the custody determination lacks
a sound and substantial basis in the record” (Fox v Fox, 177 AD2d 209,
211-212). Moreover, “[o]ur authority in determinations of custody is
as broad as that of Family Court” (Matter of Bryan K.B. v Destiny
S.B., 43 AD3d 1448, 1450; see Matter of Louise E.S. v W. Stephen S.,
64 NY2d 946, 947).

     We agree with the father that the incidents of domestic violence
in the mother’s household constitute a sufficient change in
circumstances warranting modification of the prior custody order (see
Matter of Jeremy J.A. v Carley A., 48 AD3d 1035, 1036). Furthermore,
we conclude that modification is warranted because the parties’ prior
“parenting time” arrangement, pursuant to which the father had
scheduled visitation, will “no longer [be] practical upon the child’s
attainment of school age” (York, 89 AD3d at 1448; see Matter of
Claflin v Giamporcaro, 75 AD3d 778, 779-780, lv denied 15 NY3d 710).

     We also agree with the father, upon our review of the relevant
factors (see Fox, 177 AD2d at 210), that it is in the child’s best
interests to award him primary physical custody of the child.
Although the mother has been the primary residential parent since the
child’s birth, we conclude that the violent and abusive behavior of
the child’s uncle in the mother’s home has created a dangerous
environment for the child (see Matter of Brothers v Chapman, 83 AD3d
1598, 1599, lv denied 17 NY3d 707). We therefore vacate the order,
grant that part of the father’s cross petition seeking primary
physical custody of the child, and we remit the matter to Family Court
to fashion an appropriate visitation schedule for the mother.

     The mother failed to take an appeal from the order settling the
record, and her contentions with respect to that order therefore are
not properly before us (see Matter of Haley M.T., 96 AD3d 1549, 1550;
see generally Hecht v City of New York, 60 NY2d 57, 60-61).




Entered:   November 15, 2013                    Frances E. Cafarell
                                                Clerk of the Court
