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

665
CAF 10-00207
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER JAMES R. CAREY,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

SARAH L. WINDOVER, RESPONDENT-APPELLANT.
----------------------------------------
IN THE MATTER OF SARAH L. WINDOVER,
PETITIONER-APPELLANT,

                    V

JAMES R. CAREY, RESPONDENT-RESPONDENT.


PAUL M. DEEP, UTICA, FOR RESPONDENT-APPELLANT AND PETITIONER-
APPELLANT.

WILLIAM H. GETMAN, WATERVILLE, FOR PETITIONER-RESPONDENT AND
RESPONDENT-RESPONDENT.

DOREEN M. ST. THOMAS, ATTORNEY FOR THE CHILDREN, CLARK MILLS, FOR
IOANNA C. AND SHAYA C.


     Appeal from an order of the Family Court, Oneida County (John E.
Flemma, J.H.O.), entered December 22, 2009 in proceedings pursuant to
Family Court Act articles 6 and 8. The order, among other things,
transferred physical custody of the parties’ children to petitioner-
respondent, James R. Carey.

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

     Memorandum: Respondent-petitioner mother appeals from an order
that, inter alia, granted the petition of petitioner-respondent father
seeking to modify the prior order of custody by awarding him primary
physical custody of the parties’ children and dismissed the mother’s
family offense petition. We affirm. We note at the outset that the
mother failed to include in the record on appeal the prior order
awarding her primary physical custody of the children and visitation
to the father. Although “omission from the record on appeal of the
order sought to be modified ordinarily would result in dismissal of
the appeal [with respect to that order] . . ., there is no dispute
[concerning] the access awarded [the mother] under the prior order
and, as such, we elect to reach the merits” (Matter of Dann v Dann, 51
                                 -2-                           665
                                                         CAF 10-00207

AD3d 1345, 1346-1347).

     We reject the mother’s contention that Family Court erred in
determining that the father established the requisite change in
circumstances to warrant modification of the existing custody
arrangement. “ ‘It is well established that alteration of an
established custody arrangement will be ordered only upon a showing of
a change in circumstances [that] reflects a real need for change to
ensure the best interest[s] of the child’ ” (Matter of Amy L.M. v
Kevin M.M., 31 AD3d 1224, 1225; see Matter of Chrysler v Fabian, 66
AD3d 1446, lv denied 13 NY3d 715). We conclude that the father met
that burden by introducing evidence establishing that the mother moved
four times in the year prior to the filing of his petition and that
she sometimes stayed in a residence for only two or three weeks (see
Matter of Moore v Moore, 78 AD3d 1630, lv denied 16 NY3d 704).
Furthermore, the father presented evidence, including testimony from a
court-appointed special advocate, establishing that the conditions in
the mother’s new residence were not suitable for the children. In
contrast, the evidence in the record establishes that the father had a
stable residence with appropriate beds for the children, and he was
fully employed. Consequently, “according due deference to [the
c]ourt’s assessment of witness credibility” (Matter of Graves v
Stockigt, 79 AD3d 1170, 1171), we conclude that the court’s
determination to award primary physical custody of the children to the
father is supported by a sound and substantial basis in the record and
will not be disturbed (see Matter of McLeod v McLeod, 59 AD3d 1011).

     We have considered the mother’s remaining contention and conclude
that it is without merit.




Entered:   June 10, 2011                        Patricia L. Morgan
                                                Clerk of the Court
