                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 29, 2015                    519564
________________________________

In the Matter of EDWARD W.
   MENHENNETT III,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

EMILY ANNE BIXBY,
                    Appellant.
________________________________


Calendar Date:   September 16, 2015

Before:   Lahtinen, J.P., Egan Jr., Devine and Clark, JJ.

                              __________


     Samuel D. Castellino, Big Flats, for appellant.

     Alena E. Van Tull, Binghamton, attorney for the child.

                              __________


Egan Jr., J.

      Appeal from an order of the Family Court of Broome County
(Connerton, J.), entered July 22, 2014, 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 unmarried parents of a daughter
(born in 2008). By order entered July 31, 2013, Family Court
awarded the parties, who had not lived together since the child
was seven months old, joint legal custody with primary physical
custody to the mother and extended visitation to the father. In
September 2013, the mother moved into a house in Chenango County
(her fourth residence in five years) where she resided with her
                               -2-                519564

boyfriend and the parties' daughter.1

      On February 18, 2014, the mother and her boyfriend had an
argument, and the boyfriend apparently left their shared
residence and proceeded to an undisclosed location in Broome
County. Despite the fact that it was "extremely snowy" that
evening, the mother, who was nine months pregnant with her
boyfriend's child and admittedly had been drinking, climbed into
a vehicle with the parties' five-year-old daughter in tow and set
out for Broome County – making an effort "to take back roads."2
At some point, the mother's vehicle became stuck in a snowbank –
where it was discovered by an off-duty state trooper. Another
trooper was dispatched to the scene of what was described as a
disabled vehicle; upon arrival, the responding trooper noted that
the mother smelled of alcohol and displayed "slurred speech,
droopy eyes and poor coordination." When the mother refused to
perform field sobriety tests, she was placed under arrest and
transported – with the child – to the nearby State Police




     1
        The mother and her boyfriend continued to reside together
until shortly before the hearing in this matter. According to
the mother, this separation was undertaken in an effort to avoid
any further "accusations" against them regarding their
relationship and/or its impact upon the parties' child. The
mother acknowledged, however, that she and her boyfriend were
"still together."
     2
        The mother's license was under suspension at this time
due to her failure to pay a previously imposed fine, but the
mother could not recall precisely when she learned of the
suspension – speculating that notice thereof may have been lost
when she changed residences. As of the time of the underlying
hearing, the mother still had not paid the fine in its entirety
and she acknowledged that it would take her "a couple of years"
to get her license back. The mother's boyfriend also did not
have a license – apparently due to his failure to pay the fines
imposed on some "old tickets."
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barracks.3 As the trooper was placing the mother in the patrol
vehicle, he received a dispatch informing him that Broome County
law enforcement officials were attempting to locate the mother in
response to a purported suicide threat.4

      The father thereafter commenced this modification
proceeding seeking sole legal and physical custody of the
parties' child. Following a hearing and a Lincoln hearing,
Family Court granted the father's petition to the extent of
awarding him primary physical custody of the child and, as to the
mother, such "reasonable visitation . . . as may be arranged
between [the parties]." This appeal by the mother ensued.

      We affirm. A parent seeking to modify an existing custody
order first must demonstrate that a change in circumstances has
occurred since the entry thereof that is sufficient to warrant
the court undertaking a best interests analysis in the first
instance; assuming this threshold requirement is met, the parent
then must show that modification of the underlying order is
necessary to ensure the child's continued best interests (see
Matter of Chris X. v Jeanette Y., 124 AD3d 1013, 1014 [2015];
Matter of Bowers v Bowers, 101 AD3d 1200, 1201 [2012]). In
addition to the mother's actions on the evening of her arrest and
the corresponding indications of alcohol and mental health


     3
        As the resulting criminal charges were still pending at
the time of the hearing in this matter, the mother invoked her
Fifth Amendment rights as to the details of the underlying
incident. The mother did, however, acknowledge that she had a
prior conviction for driving while ability impaired.
     4
        Although the mother denied ever intending to harm
herself, the maternal grandmother, who had contacted 911 on the
evening in question and expressed concern regarding the mother's
whereabouts, testified that the mother suffered from depression.
Similarly, while the grandmother did not recall informing the
dispatcher of the mother's alleged suicide threat, she did
acknowledge that she had received a phone call from the mother's
boyfriend that evening, wherein the boyfriend purportedly related
the mother's plan to "kill herself with drugs."
                              -4-                519564

issues, the record reflects that the mother had significant
difficulty in getting the child to school in a timely and/or
consistent fashion – a problem that the mother attributed to the
fact that the child was not a "morning person." Specifically,
testimony adduced at the hearing revealed that, during a six-
month period when the child was residing with the mother, the
child was late to school on 19 occasions with 12 absences and six
early dismissals (see Matter of Palmatier v Carman, 125 AD3d
1139, 1141 [2015]). Under these circumstances, we are satisfied
that the father met his threshold burden of demonstrating the
requisite change in circumstances.

      As to the best interests analysis, although the mother
indeed has been the child's primary caregiver, upon due
consideration of all of the relevant factors, including each
parent's past performance, relative fitness and ability to
provide and maintain a stable home for the child (see Matter of
Dykstra v Bain, 127 AD3d 1516, 1517-1518 [2015]), we find that
Family Court's decision to modify the prior order and award
primary physical custody to the father is supported by a sound
and substantial basis in the record. At the time of the hearing,
the father was employed as a carpenter with flexible work hours,
had a valid driver's license and was living with his mother and
his brother while attempting to save money to purchase a home of
his own. The mother, on the other hand, was unemployed and, as
such, depended entirely upon child support, public assistance and
financial support from her family to meet her monthly expenses.
As noted previously, the mother's license was under suspension
(requiring her to rely upon her parents for transportation),
questions remained regarding the circumstances under which her
unemployed boyfriend, with whom the mother admittedly was still
involved, vacated their shared residence and, while in the
mother's care, the child was either late to or absent from school
on a multitude of occasions. Additionally, while the mother
testified that she was receiving counseling for her alcohol-
related issues, she offered no treatment records or any other
documentation/testimony attesting to her efforts in this regard.
Finally, although the mother emphasizes that, as of the time of
the hearing, she had not been convicted of any criminal charges
relating to the February 2014 incident, the fact remains that the
mother, by her own admission, consumed alcohol and thereafter set
                              -5-                  519564

out with her young child in her vehicle on a snowy night. For
all of these reasons, we find ample support for Family Court's
decision to award primary physical custody of the child to the
father. The mother's remaining arguments, to the extent not
specifically addressed, have been examined and found to be
lacking in merit.

     Lahtinen, J.P., Devine and Clark, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
