                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 8, 2016                   521194
________________________________

In the Matter of ANDREW S.,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

ROBIN T.,
                    Appellant.
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Calendar Date:   October 13, 2016

Before:   Garry, J.P., Egan Jr., Rose, Devine and Mulvey, JJ.

                             __________


     Norbert Higgins, Binghamton, for appellant.

     Christopher A. Pogson, Binghamton, for respondent.

     Palmer J. Pelella, Binghamton, attorney for the children.

                             __________


Mulvey, J.

      Appeal from an order of the Family Court of Broome County
(Connerton, J.), entered April 29, 2015, which 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 three children (born
in 2001, 2005 and 2009). The mother and the father separated in
2009 and divorced in 2013. Pursuant to an April 2010 custody and
visitation order, the parties shared joint custody of the
children, with the children residing primarily at the mother's
home. The father was granted regular visitation with all three
children on alternate weekends and over certain school breaks.
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      In November 2014, the Broome County Child Protective
Services (hereinafter CPS) began investigating a report that the
mother and her boyfriend had hit one of the children. The father
then filed a petition for modification of the existing custody
order. Family Court entered a temporary order transferring the
children's primary residence to the father's home, granting the
mother visitation at the home of a relative and prohibiting any
contact between the children and the boyfriend. Following fact-
finding and Lincoln hearings, Family Court granted the father's
petition for modification and awarded him custody of the
children. The mother was granted alternate weekend visitation,
provided that the visits occur outside the presence of the
boyfriend. The mother now appeals, and we affirm.

      "In a custody modification proceeding, the party seeking to
modify an existing custodial arrangement . . . is required to
demonstrate, as a threshold, that there has been a change in
circumstances since the prior custody order . . . to warrant a
review of the issue of custody to ensure the continued best
interests of the children" (Matter of Andrew L. v Michelle M.,
140 AD3d 1240, 1241 [2016] [internal quotation marks, brackets
and citations omitted]). "If this threshold is met, factors
relevant to determining whether a modification will serve the
children's best interests include maintaining stability in the
children's lives, the quality of the respective home
environments, the length of time the present custody arrangement
has been in place, each parent's past performance, relative
fitness and ability to guide and provide for the children's well-
being, and the willingness of each parent to foster a
relationship with the other parent" (id. at 1241 [internal
quotation marks, brackets and citations omitted]; see Matter of
Paul A. v Shaundell LL., 117 AD3d 1346, 1348-1349 [2014], lv
dismissed and denied 24 NY3d 937 [2014]).

      At the fact-finding hearing, it was established that prior
to the November 2014 abuse report, CPS had issued two separate
indicated reports against the boyfriend for using excessive force
against the children. After the first report in May 2010, the
boyfriend signed a safety contract promising not to use corporal
punishment. Notwithstanding that commitment, in early 2014,
another safety contract similarly prohibited the boyfriend from
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physically disciplining the children. The boyfriend incurred a
second indicated report in March 2014, and CPS then asked the
mother to keep the children away from him, and the mother did not
follow CPS's instructions. In November 2014, a report by the
Central Register of Child Abuse and Maltreatment again alleged
that both the boyfriend and the mother had hit the middle child,
causing him to experience "suicidal ideations." Ultimately, the
investigation led to another indicated report against both the
boyfriend and the mother for inadequate guardianship.
Additionally, an investigation ordered by Family Court pursuant
to Family Ct Act § 1034 (hereinafter the 1034 report) produced
"credible evidence" of inadequate guardianship due to excessive
use of force.

      The boyfriend testified and disputed these accounts. He
admitted to signing a safety contract, but denied ever engaging
in corporal punishment. He also denied responsibility for the
May 2010 incident that led to the first indicated report against
him. The mother similarly denied any allegations of abuse and,
according to the 1034 report, suggested that the children
fabricated their accounts. The mother testified that she never
saw the boyfriend use corporal punishment, and that any contact
with the children was mere "horseplay." However, she offered
conflicting testimony over whether the boyfriend ever disciplined
the children and admitted to witnessing him grab the oldest
child.

      Family Court found that, since entry of the April 2010
visitation and custody order, the boyfriend had "hurt" the
children, "left marks on them" and had used physical discipline,
notwithstanding his agreement on prior occasions not to use
physical force against the children and warnings by CPS regarding
his inappropriate use of excessive force. The CPS employee's
testimony and the 1034 report provided detailed and generally
consistent accounts of such punishment. In contrast, both the
boyfriend's and the mother's testimony was inconsistent and self-
serving. Family Court also found that the mother had
consistently put her own interests ahead of the children's
interests when it came to defending her boyfriend's actions. A
change in circumstances may be shown through evidence that the
children have been subjected to excessive corporal punishment
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(see Matter of Mary BB. v George CC., 141 AD3d 759, 761 [2016];
Matter of Terry I. v Barbara H., 69 AD3d 1146, 1147–1148 [2010]).
Accordingly, we agree with Family Court that the evidence
establishes that a change in circumstances had occurred to
warrant a best interests analysis.

      Turning to the best interests analysis, in awarding custody
to the father, Family Court relied on the foregoing allegations
of abuse, the father's ability to best meet the children's needs
and his commitment to resolving visitation issues with the
mother. In support of those conclusions, the father testified
that he had obtained Medicaid coverage for the children and
sought needed counseling referrals for the two older children.
He claimed to be open to regular visitation with the mother,
provided that the boyfriend not be present. The father has
steady employment and lives with his mother, who helps care for
the children. Family Court applied the relevant factors,
including the quality of the home environments, each parent's
ability to provide for the children's well-being and the father's
willingness to foster a relationship with the mother. We "accord
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, and
will not disturb its custodial determination if supported by a
sound and substantial basis in the record" (Matter of Daniel TT.
v Diana TT., 127 AD3d 1514, 1515 [2015]; see Matter of Andrew L.
v Michelle M., 140 AD3d at 1241). Family Court's conclusions
were supported by a sound and substantial basis in the record,
and, accordingly, a modification of the custody order was
warranted (see Matter of Andrew L. v Michelle M., 140 AD3d at
1242; Matter of Paul A. v Shaundell LL., 117 AD3d at 1348-1349).

     Garry, J.P., Egan Jr., Rose and Devine, JJ., concur.
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ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
