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

908
CAF 14-01645
PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.


IN THE MATTER OF JAIMYCE L. MCCLINTON,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

BARSUN U. KIRKMAN, RESPONDENT-RESPONDENT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (JOHN M. WESLEY OF
COUNSEL), FOR PETITIONER-APPELLANT.

CHRISTOPHER E. BURKE, ATTORNEY FOR THE CHILD, SYRACUSE.


     Appeal from an order of the Family Court, Onondaga County
(Michael L. Hanuszczak, J.), entered August 4, 2014 in a proceeding
pursuant to Family Court Act article 6. The order, insofar as
appealed from, granted the motion of respondent to dismiss and
dismissed the amended petition.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the amended petition is
reinstated, and the matter is remitted to Family Court, Onondaga
County, for further proceedings in accordance with the following
memorandum: Petitioner mother commenced this proceeding seeking,
inter alia, to modify a prior order pursuant to which respondent
father had sole custody of the parties’ child. We agree with the
mother that Family Court erred in granting the father’s motion to
dismiss the amended petition at the close of the mother’s case.

     “It is well established that alteration of an established custody
arrangement will be ordered only upon a showing of a change in
circumstances which reflects a real need for change to ensure the best
interest[s] of the child” (Matter of Irwin v Neyland, 213 AD2d 773,
773; see Matter of Moore v Moore, 78 AD3d 1630, 1630, lv denied 16
NY3d 704). “Where, as here, ‘a respondent moves to dismiss a
modification proceeding at the conclusion of the petitioner’s proof,
the court must accept as true the petitioner’s proof and afford the
petitioner every favorable inference that reasonably could be drawn
therefrom’ ” (Matter of Walters v Francisco, 63 AD3d 1610, 1611; see
Matter of Gelster v Burns, 122 AD3d 1294, 1295, lv denied 24 NY3d
915). Here, accepting the mother’s proof as true and affording her
the benefit of every favorable inference, we conclude that she
“presented sufficient prima facie evidence of a change of
circumstances [that] might warrant modification of custody in the best
interests of the child” (Matter of James R.O. v Cond-Arnold, 99 AD3d
                                 -2-                           908
                                                         CAF 14-01645

801, 801-802; see Matter of Maher v Maher, 1 AD3d 987, 988).

     First, the mother established through her testimony and
documentary exhibits that, for a significant period of time, the child
resided with the paternal grandmother in Syracuse while the father
“live[d] out of Syracuse.” Such evidence establishes that the father
“abdicated [his] role as the child’s primary caregiver, at least
temporarily, by leaving the child with the grandmother” (Matter of
Hetherton v Ogden, 79 AD3d 1172, 1173; see Matter of Blasdell v
DeGolier, 303 AD2d 1045, 1047; cf. Matter of Williams v Williams, 188
AD2d 906, 908). Second, the mother established that her “work
schedule had changed substantially since the entry of the prior
custody order” (Matter of Porter v Nesbitt, 74 AD3d 1786, 1787; cf.
Matter of Gross v Gross, 119 AD3d 1453, 1453-1454), inasmuch as her
status in the Army Reserves had changed to inactive and thus she would
not be called to active duty training or deployed.

     Based on the foregoing, we conclude that the mother “met [her]
burden of demonstrating a sufficient change in circumstances to
require consideration of the welfare of the child[ ]” (Maher, 1 AD3d
at 988). Because the court did not proceed with a full hearing, we do
not have an adequate record upon which to make our own determination
in the interest of judicial economy (cf. id.). We therefore reinstate
the amended petition and remit the matter to Family Court for a
hearing and determination of custody based on the best interests of
the child before a different judge, and we agree with the mother that
she is entitled to a ruling on merits of her motion for discovery
sanctions.




Entered:   October 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
