                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 7, 2016                   519757
____________________________________

In the Matter of BILLIE JO
   ROHDE,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

RAYMOND W. ROHDE JR.,
                    Respondent.

(And Two Other Related Proceedings.)
____________________________________


Calendar Date:   November 17, 2015

Before:   Lahtinen, J.P., Garry, Rose, Lynch and Devine, JJ.

                             __________


     Randolph V. Kruman, Cortland, for appellant.

     Kristine M. Shaw, Ithaca, for respondent.

     Margaret McCarthy, Ithaca, attorney for the children.

                             __________


Lynch, J.

      Appeal from an order of the Family Court of Chemung County
(Rich Jr., J.), entered August 22, 2014, which, among other
things, in three proceedings pursuant to Family Ct Act article 6,
modified a prior order of custody and visitation.

      Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the parents of two children (born in
1998 and 2001). In September 2013, Family Court (Brockway, J.)
issued an order granting joint legal custody with physical
custody to the father and parenting time to the mother.
Specifically, with respect to the younger child, the mother was
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granted parenting time every other weekend, with overnights
subject to the child's approval. With respect to the older
child, the court ordered that parenting time was to occur subject
to that child's approval. In February 2014, the mother filed an
enforcement petition alleging that the father violated the
September 2013 order. After temporary orders were issued in
March 2014 and May 2014 limiting the mother's contact with the
children to telephone calls, the mother filed two more
enforcement petitions alleging that each of these orders was
violated. After a Lincoln hearing and a fact-finding hearing,
Family Court (Rich Jr., J.) dismissed each of the petitions, and
the mother's parenting time was suspended.1 The mother now
appeals.

      Initially, inasmuch as the mother did not object after the
September 2013 custodial order was modified twice during the
pendency of the fact-finding hearing, we find that the mother's
argument that Family Court deprived her of due process by
suspending her parenting time is not preserved for our review
(see Matter of Tisdale v Anderson, 100 AD3d 1517, 1517 [2012];
Matter of Castillo v Luke, 63 AD3d 1222, 1223 [2009]; Matter of
Young v Collins, 37 AD3d 1014, 1016 [2007]). Moreover,
notwithstanding her initial petition, the mother also requested,
at the initial appearance and while represented by counsel, a
"change in custody" based on the father's conduct following the
entry of the September 2013 order. Later, the attorney for the
children sought confirmation, without dispute, that the mother
sought to convert the violation petition to one for modification


    1
        At the commencement of the fact-finding hearing, Family
Court erred to the extent that it expressly revealed the
substance of the childrens' communications during the Lincoln
hearing (see Matter of Lawrence v Kowatch, 119 AD3d 1004, 1006 n
1 [2014]). We must reiterate that, however well intended the
trial court may have been, protecting the child's right to
confidentiality, as promised, "remains a paramount obligation" in
Family Ct Act article 6 proceedings (Matter of Julie E. v David
E., 124 AD3d 934, 937-938 [2015]; see Matter of Susan LL. v
Victor LL., 88 AD3d 1116, 1119 n 4 [2011]; Matter of Hrusovsky v
Benjamin, 274 AD2d 674, 676 [2000]).
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of the prior custody order. Under the circumstances, therefore,
we have no doubt that the mother was on notice that custody was
at issue in these proceedings (see Matter of Vanita UU. v
Mahender VV., 130 AD3d 1161, 1163 [2015], lv dismissed and denied
26 NY3d 998 [2015]; Matter of Kowatch v Johnson, 68 AD3d 1493,
1495 [2009], lv denied 14 NY3d 704 [2010]).

      Turning to the merits, a parent seeking to modify an
existing custody order must "demonstrate[] a change in
circumstances that warrants an inquiry into the best interests of
the child[ren]" (Matter of Schlegel v Kropf, 132 AD3d 1181, 1182
[2015]; see Matter of Vanita UU. v Mahender VV., 130 AD3d at
1163). To determine whether modification is in the children's
best interests, we consider such factors as "the relative
fitness, stability, past performance, and home environment of the
parents, as well as their ability to guide and nurture the
children and foster a relationship with the other parent" (Matter
of Shokralla v Banks, 130 AD3d 1263, 1264 [2015] [internal
quotation marks and citation omitted]). The wishes of older,
more mature children, while not dispositive, may support a
finding of a change in circumstances and may be considered when
determining their best interests (see Matter of Jones v Moore,
129 AD3d 1400, 1401 [2015]; Matter of Colona v Colona, 125 AD3d
1123, 1126 [2015]).

      Here, although Family Court did not make an express finding
with regard to change in circumstances, we have the authority to
independently review the record to determine whether such
circumstances existed (see Matter of Clouse v Clouse, 110 AD3d
1181, 1183 [2013], lv denied 22 NY3d 858 [2014]). In our view,
and as noted by Family Court, the "extraordinarily damaged
relationship" between the mother and the children was a
sufficient change in circumstances to warrant consideration of
the children's best interests. While there was conflicting
testimony before the court with regard to the behavior of the
parents and the father's girlfriend towards each other in front
of the children, these credibility issues were for the court to
resolve (see Matter of Colona v Colona, 125 AD3d at 1126; Matter
of Bond v MacLeod, 83 AD3d 1304, 1306 [2011]). Having found that
there was a sufficient change in circumstances, we further find
that, based on the evidence and giving the requisite deference to
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Family Court's credibility findings, the record provides a sound
and substantial basis for its determination that suspension of
the visitation order was in the childrens' best interests (see
Matter of Colona v Colona, 125 AD3d at 1126).

     Lahtinen, J.P., Garry, Rose and Devine, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
