                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: June 2, 2016                        520909
________________________________

In the Matter of BRIAN J.
   NORMILE,
                    Respondent,
      v                                       MEMORANDUM AND ORDER

NICOLE M. STALKER,
                    Appellant.
________________________________


Calendar Date:   April 19, 2016

Before:   Peters, P.J., Garry, Rose, Clark and Aarons, JJ.

                               __________


     Samuel D. Castellino, Big Flats, for appellant.

     Larisa Obolensky, Delhi, for respondent.

     Allen E. Stone, Vestal, attorney for the children.

                               __________


Aarons, J.

      Appeal from an order of the Family Court of Broome County
(Young, J.), entered April 6, 2015, which partially granted
petitioner's application, in a proceeding pursuant to Family Ct
Act article 6, to modify a prior order of custody.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the parents of two sons (born in
2005 and 2006). Under a 2012 order, the parties shared joint
legal custody of the children with each party having primary
physical custody on alternating weeks. In late 2013, the father
was incarcerated. While the father was incarcerated, the parties
agreed to modify the existing custody arrangement. Under the new
arrangement, embodied in a 2013 order, the mother had primary
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physical custody of the children and the father had visitation
with the children every other weekend. The father was
subsequently released from incarceration after a jury found him
not guilty of the accused crime. In May 2014, the father
commenced this proceeding seeking to modify the 2013 order and
for sole custody of the children. After fact-finding and Lincoln
hearings, Family Court granted the father's petition to the
extent of awarding the parties joint legal custody of the
children and restoring the prior physical custody schedule of
alternating weeks. The mother appeals. We affirm.

      Initially, when a party seeks a modification of an existing
custody order, such party must first show a change in
circumstances, and when this showing is satisfied, the court then
undertakes a best interests of the children analysis to see if a
modification is warranted (see Matter of Bush v Miller, 136 AD3d
1238, 1239 [2016]; Matter of Menhennett v Bixby, 132 AD3d 1177,
1179 [2015]). While Family Court's order did not specifically
recite the facts forming its basis for finding a change in
circumstances, because we have the authority to independently
review the record and make this determination, it is unnecessary
to remit the matter on this issue (see Matter of Martin v Mills,
94 AD3d 1364, 1365 [2012]). Since the issuance of the 2013
order, the father has been released from incarceration and now
lives in a three-bedroom house near the children's school (see
Matter of Walter TT. v Chemung County Dept. of Social Servs., 132
AD3d 1170, 1170 [2015]; Matter of Kowatch v Johnson, 68 AD3d
1493, 1494 [2009], lv denied 14 NY3d 704 [2010]). Taking into
consideration the children's preferences as a relevant factor, we
conclude that there was a change in circumstances justifying an
inquiry as to whether a modification of the 2013 order would
serve the best interests of the children (see Matter of Yeager v
Yeager, 110 AD3d 1207, 1209 [2013]; Matter of Whitcomb v Seward,
86 AD3d 741, 742 [2011]; Matter of Meier v Meier, 79 AD3d 1295,
1295 [2010]).

      Factors relevant to the best interests of the children
analysis include "maintaining stability in the children's
li[ves], the wishes of the children, the parties' fitness and
ability to provide for the children's intellectual and emotional
development, the willingness of each parent to foster a
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relationship with the other, each parent's past performance and
the quality of the respective home environments" (Matter of
Valenti v Valenti, 57 AD3d 1131, 1133 [2008], lv denied 12 NY3d
703 [2009]). We accord due deference to Family Court's findings
and credibility determinations and will not disturb them so long
as they are supported by a sound and substantial basis in the
record (see Matter of Trimble v Trimble, 125 AD3d 1153, 1154
[2015]; Matter of Poremba v Poremba, 93 AD3d 1115, 1117 [2012];
Matter of Robinson v Davis, 58 AD3d 1041, 1042 [2009]).

      Here, the mother lives in a three-bedroom house with her
boyfriend, with whom she has a son and daughter. When staying
with the mother, the children share a bedroom with the mother's
other son. The father also lives in a three-bedroom house where
the children share their own room. The father attends the
children's sporting events, he plays and reads books with the
children, he takes them to their medical appointments, and there
is nothing to suggest that he is unable to pay for their living
expenses. The children also have a close relationship with their
paternal grandmother, who arranged with the mother to continue
interacting with the children when the father was incarcerated.
Each party had reservations about the other party's ability to
parent, raise and care for the children, but they are
contradicted by the record in that the mother bathed the children
each night and followed the instructions and advice of the
children's medical professionals, and the father, when necessary,
contacted the school to address any issues regarding the
children's education.

      Family Court found that the children were happy at both the
mother's home and the father's home and that the children wished
to spend an equal amount of time with them. The record thus
reflects that an order of joint legal custody with each parent
having physical custody on alternating weeks – an arrangement
that gives each party equal time with the children – serves the
best interests of the children. Although not determinative, the
custody arrangement ordered by Family Court is consistent with
the position of the attorney for the children (see Matter of
Schnock v Sexton, 101 AD3d 1437, 1438 n [2012]). Accordingly, we
believe that Family Court's determination has a sound and
substantial basis and should not be disturbed (see Fermon v
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Fermon, 135 AD3d 1045, 1046 [2016]; Matter of Bailey v Blair, 127
AD3d 1274, 1276 [2015]; Matter of Whitcomb v Seward, 86 AD3d at
744).

     Peters, P.J., Garry, Rose and Clark, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
