                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: May 5, 2016                        520619
____________________________________

In the Matter of TARA AA.,
                    Respondent,
      v
                                             MEMORANDUM AND ORDER
MATTHEW BB.,
                     Appellant.

(And Two Other Related Proceedings.)
____________________________________


Calendar Date:   March 22, 2016

Before:    Lahtinen, J.P., McCarthy, Garry, Rose and Mulvey, JJ.

                              __________


     Ciano J. Lama, Ithaca, for appellant.

     Kelly A. Damm, Ithaca, for respondent.

     Donna C. Chin, Ithaca, attorney for the child.

                              __________


Rose, J.

      Appeal from an order of the Family Court of Tompkins County
(Cassidy, J.), entered February 10, 2015, 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) and respondent
(hereinafter the father) are the unwed parents of a daughter
(born in 2005). Pursuant to a February 2011 order made on
consent, the parties shared joint legal and physical custody of
the child. In March 2014, the child informed the mother that,
while she was visiting the father's home, her older half sisters
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who live with the father had caused a painful injury to her
vaginal area. Within days, the mother commenced a modification
proceeding seeking sole legal and physical custody of the child.
Family Court thereafter granted temporary sole custody to the
mother, prompting the father to file his own modification
petition, in which he also sought sole custody of the child. The
father also filed a sworn letter concerning the child's
visitation with his other children – the child's half siblings
and stepsiblings – which Family Court deemed a petition for
visitation and appointed an attorney for these children. After a
fact-finding hearing on the underlying petitions, as well a
Lincoln hearing for the child, but not for the siblings, Family
Court, among other things, awarded sole legal and physical
custody of the child to the mother and granted the father three
hours of visitation each Wednesday. The father now appeals.

      The father's central argument is that the mother failed to
establish a change in circumstances since the entry of the 2011
custody order on consent. We disagree. It is axiomatic that an
existing custody order may be modified "only where the
petitioning party demonstrates a change in circumstances that
warrants an inquiry into the best interests of the child" (Matter
of Schlegel v Kropf, 132 AD3d 1181, 1182 [2015]; see Matter of
Knox v Romano, 137 AD3d 1530, 1531 [2016]). "Notably, where[, as
here,] the order sought to be modified is entered upon the
parties' consent, it is accorded less weight than an order
following a full hearing" (Matter of Cornick v Floreno, 130 AD3d
1170, 1171 [2015]; see Matter of Demers v McLear, 130 AD3d 1259,
1260 [2015]).

      At the fact-finding hearing, the mother, the child's school
teacher and a Tompkins County Department of Social Services
caseworker all testified that, in March 2014, the child told them
that, while she was at the father's residence, her older half
sisters touched and pinched her vaginal area, causing her
significant pain. The child was later diagnosed with a labial
adhesion, which the caseworker believed to be the result of the
half sisters' actions. The caseworker further testified that,
when she first notified the father of the child's complaints and
diagnosis, "[h]e denied that his children would ever touch each
other's privates in any way whatsoever." And, indeed, when asked
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about the incident at the fact-finding hearing, the father
remained steadfast in his refusal to acknowledge the alleged
touching as a possible cause of the child's injury. The record
additionally reveals that, in January 2014, the father was
terminated from his job for sexual harassment, and that he
currently relies exclusively on public assistance to support the
child, as well as his current wife, their six additional children
and their 11 pets, all of whom live together in the same single-
wide trailer. Based upon the foregoing evidence, we find that
the mother established a change in circumstances warranting a
best interests analysis (see Matter of Klee v Schill, 95 AD3d
1599, 1600-1601 [2012]; Matter of Starkey v Ferguson, 80 AD3d
799, 801 [2011]). We also find support for Family Court's
determination that joint custody is no longer feasible due to the
father's frequent inability to communicate effectively and work
cooperatively with the mother for the good of the child –
especially in regard to her medical care – which, in and of
itself, amounts to a change in circumstances (see Matter of
Colleen GG. v Richard HH., 135 AD3d 1005, 1007 [2016]; Matter of
Schlegel v Kropf, 132 AD3d at 1182).

      As to the best interests analysis, the father's brief
raises no issue with Family Court's determination that the mother
was better equipped to meet the child's needs and, thus, any
argument that the father could have made in that regard is deemed
abandoned (see Matter of Samuel A. Garrasi and Mary H. Garrasi
Family Trust, 104 AD3d 990, 991 n 3 [2013], lv dismissed 21 NY3d
1066 [2013]; Matter of Alexis AA. [John AA.], 91 AD3d 1073, 1073
n 2 [2012], lv denied 18 NY3d 809 [2012]). In any event, if we
were to address the merits, we would find that "the court fully
considered the appropriate factors relevant to the proposed
custody modification[,] made credibility determinations to which
we will defer" and reached a conclusion regarding the child's
best interests that is soundly and substantially supported by the
record (Matter of Hartjen v Hartjen, 132 AD3d 1172, 1173 [2015];
see Matter of Cornick v Floreno, 130 AD3d at 1172; Matter of
Festa v Dempsey, 110 AD3d 1162, 1163 [2013]).

      The father's remaining argument that Family Court committed
reversible error by failing to hold Lincoln hearings for the
child's half siblings and stepsiblings is without merit. There
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is no legal requirement that the court order in camera hearings
for non-subject children whose preferences are merely ancillary
to the resolution of a custody dispute, and with whom the subject
child has never resided on a full-time basis (see generally
Eschbach v Eschbach, 56 NY2d 167, 169-170, 173 [1982]; Matter of
Lincoln v Lincoln, 24 NY2d 270, 271-272 [1969]; Matter of Jessica
B. v Robert B., 104 AD3d 1077, 1077-1078 [2013]).

     Lahtinen, J.P., McCarthy, Garry and Mulvey, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
