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

361
CAF 14-02200
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


IN THE MATTER OF MICHELE A. SLOMA,
PETITIONER-RESPONDENT,

                    V                                MEMORANDUM AND ORDER

ERIC M. SLOMA, RESPONDENT-APPELLANT.
(APPEAL NO. 1.)


RICHARD L. WOLFE, UTICA, FOR RESPONDENT-APPELLANT.

JULIE GIRUZZI-MOSCA, ATTORNEY FOR THE CHILD, UTICA.


     Appeal from an order of the Family Court, Oneida County (James R.
Griffith, J.), entered February 6, 2014 in a proceeding pursuant to
Family Court Act article 6. The order, inter alia, granted petitioner
primary physical custody of the parties’ child.

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

     Memorandum: In appeal No. 1, respondent father appeals from an
order that, inter alia, modified a prior order by granting petitioner
mother primary physical custody of the parties’ child. In appeal No.
2, the father appeals from an order that dismissed his order to show
cause pursuant to CPLR 4404 (b), thus in effect denying the father’s
motion to vacate the order that is the subject of appeal No. 1.

     Contrary to the father’s contention in appeal No. 1, Family Court
properly determined that the mother established that there was a
sufficient change in circumstances since the time of the prior order
that warranted modification of that order (see generally Matter of
Guillermo v Agramonte, 137 AD3d 1767, 1768; Matter of McClinton v
Kirkman, 132 AD3d 1245, 1245-1246). Pursuant to their opting out
agreement that was incorporated but not merged in the judgment of
divorce, the parties agreed to joint custody with the mother having
primary physical custody, and the parties would enroll the child “in
the Whitesboro School District at Deerfield Elementary if possible.”
When the mother relocated and moved the child into a school in a
different school district a year later, the father was granted primary
physical custody after a trial based primarily on the change in the
child’s school. After obtaining custody, the father re-enrolled the
child at Deerfield, but six months later he enrolled the child in a
different school, albeit in the same school district. We conclude
that the change in school, together with testimony from the mother
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                                                         CAF 14-02200

concerning the father’s interference with her custodial rights, was
sufficient to establish a change in circumstances (see generally
Matter of Mehta v Franklin, 128 AD3d 1419, 1420).

     Contrary to the father’s further contention, the court’s
determination awarding the mother primary physical custody is in the
child’s best interests (see id.). “In making a determination
regarding custody, ‘numerous factors are to be considered, including
the continuity and stability of the existing custodial arrangement,
the quality of the child’s home environment and that of the parent
seeking custody, the ability of each parent to provide for the child’s
emotional and intellectual development, the financial status and
ability of each parent to provide for the child, and the individual
needs and expressed desires of the child’ ” (Matter of Bryan K.B. v
Destiny S.B., 43 AD3d 1448, 1450; see Fox v Fox, 177 AD2d 209, 210).
Here, most of the factors did not favor one party over the other. We
agree with the court, however, that the evidence established that the
father failed to nurture or facilitate a relationship between the
mother and the child. In addition, the father made decisions
regarding the child that were beneficial to his new family, such as
changing her school, pediatrician, and dentist, but the decisions were
not always beneficial to the child. We conclude that granting the
mother primary physical custody was in the best interests of the child
inasmuch as the mother was better able to provide for the child’s
emotional and intellectual development (see generally Bryan K.B., 43
AD3d at 1450-1451).

     Also contrary to the father’s contention, the court properly
exercised its discretion in declining to conduct a Lincoln hearing
(see Matter of Charles M.O. v Heather S.O., 52 AD3d 1279, 1280; see
generally Matter of Yeager v Yeager, 110 AD3d 1207, 1209). The
conduct of the father’s wife prevented the scheduled Lincoln hearing
from occurring, and the court declined to schedule another one. In
any event, considering the child’s young age as well as the testimony
that she was being coached on what to say to the court, an in camera
hearing with the child would not be helpful in determining the child’s
preferences (see Matter of Thillman v Mayer, 85 AD3d 1624, 1625; see
generally Matter of Walters v Francisco, 63 AD3d 1610, 1611).

     With respect to appeal No. 2, we conclude that the court did not
abuse its discretion in denying the motion, and we therefore affirm
the order (see Matter of Walker v Carroll, 140 AD3d 1669, 1669).




Entered:   March 24, 2017                       Frances E. Cafarell
                                                Clerk of the Court
