                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 8, 2015                       518958
____________________________________

In the Matter of ANDREA CC.,
                    Respondent,
   v                                        MEMORANDUM AND ORDER

ERIC DD.,
                    Appellant.

(And Six Other Related Proceedings.)
____________________________________


Calendar Date:   September 11, 2015

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

                             __________


     Lisa A. Burgess, Indian Lake, for appellant.

     Michelle I. Rosien, Philmont, for respondent.

     Ellen S. Ross, Johnstown, attorney for the child.

                             __________


McCarthy, J.P.

      Appeal from an order of the Family Court         of Fulton County
(Skoda, J.), entered February 13, 2014, which,         among other
things, granted petitioner's application, in a         proceeding
pursuant to Family Ct Act article 6, to modify         a prior order of
custody.

      Petitioner (hereinafter the mother), who lives in Albany
County, and respondent (hereinafter the father), who lives in
Fulton County, are the parents of a daughter (born in 2008). In
2012, pursuant to a stipulated custody order, the parties agreed
to share joint legal custody of the child and alternated physical
custody weekly. The order also stipulated that any future
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modification of the order would be based upon the best interests
of the child, without any showing of a change in circumstances.
In July 2013, the mother, due in part to the child's attendance
in kindergarten being imminent and the parents living in
different school districts, filed a modification of custody
petition, seeking primary physical custody of the child, and a
violation petition, both in Fulton County. Shortly thereafter,
the father filed a modification petition seeking primary physical
custody of the child. In addition to filing a second violation
petition, the mother also filed another custody modification
petition and a violation petition, both in Albany County; these
were subsequently transferred to Fulton County. Thereafter, the
father filed a family offense petition against the mother and was
awarded temporary custody of the child during the pendency of the
proceedings. Following a fact-finding hearing, Family Court,
among other things, granted one of the mother's modification
petitions and awarded primary physical custody of the child to
the mother and parenting time to the father, while maintaining
joint legal custody. The court dismissed the remaining
petitions. The father appeals.

      The father contends that Family Court's order granting
primary physical custody of the child to the mother was not in
the child's best interests. As the parties personally stipulated
that they did not need to show a change in circumstances when
seeking a modification of the 2012 order, our inquiry turns to a
best interests analysis. In making such a determination, Family
Court examines "such factors as the parents' past performance and
relative fitness, their willingness to foster a positive
relationship between the child and the other parent, as well as
their ability to maintain a stable home environment and provide
for the child's overall well-being" (Matter of Teri v Elliott,
122 AD3d 1092, 1093 [2014] [internal quotation marks and citation
omitted]; see Matter of Alleyne v Cochran, 119 AD3d 1100, 1100-
1101 [2014]).

      Here, in addition to evaluating other relevant factors
regarding the parties' home environments, employment and ability
to provide for the child, Family Court found the credibility of
the parties to be significant in determining the best interests
of the child. Specifically, although the father denied any
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agreement, the court credited the mother's testimony that she and
the father had agreed that the child would attend school in
Albany County. The mother testified that, prior to the
commencement of these proceedings, the child was enrolled in
kindergarten and participated in school orientation where she
rode the school bus and met her teacher. Also, the court found
significant, and we agree, that the father misrepresented
material facts regarding the prior proceedings and the mother's
conduct during his ex parte communications with the court in
procuring the temporary custody order. To that end, the mother
was not made aware that the father was seeking custody of the
child until the police arrived with the father, who was
accompanied by numerous family and friends, to remove the child
pursuant to a temporary order of custody.

      The father exhibited a further lack of good judgment when,
without consulting with or informing the mother, he enrolled the
child in school in Fulton County, switched her pediatrician,
sought medical attention for a sunburn1 and enrolled her in
family counseling. In addition, the father engaged in further
inappropriate behavior when he repeatedly placed telephone calls
from the mother on speaker phone for family members and neighbors
to hear. Furthermore, testimony established that the father's
wife confronted the mother regarding a sunburn sustained by the
child while in the mother's care, which escalated into a heated
exchange and swearing in front of the child. The father's wife
also exhibited hostility toward the mother, particularly with the
mother's disregard of the wife's insistence that the mother
contact the child by calling the home telephone rather than the
father's cell phone. Although the record establishes that the
mother also has exhibited instances of poor judgment,
"accord[ing] great deference to Family Court's factual findings
and credibility determinations given its superior position to
observe and assess the witnesses' testimony and demeanor
firsthand," we find that there is a sound and substantial basis


    1
        We recognize that Family Court was mistaken when it
asserted that the father had not submitted medical records into
evidence to support his testimony that he had sought treatment
for the child's sunburn.
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to support the court's decision that joint custody with primary
physical custody to the mother is in the child's best interests
(Matter of Daniel TT. v Diana TT., 127 AD3d 1514, 1515 [2015];
see Matter of Alleyne v Cochran, 119 AD3d at 1101).

     Egan Jr., Lynch and Clark, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
