SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
722
CAF 14-00569
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.
IN THE MATTER OF DAVID A. LUGO,
PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
JAMIE M. HAMILL, RESPONDENT-RESPONDENT.
---------------------------------------
IN THE MATTER OF JAMIE M. HAMILL,
PETITIONER-RESPONDENT,
V
DAVID A. LUGO, RESPONDENT-APPELLANT.
MICHAEL STEINBERG, ROCHESTER, FOR PETITIONER-APPELLANT AND RESPONDENT-
APPELLANT.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-RESPONDENT AND
PETITIONER-RESPONDENT.
WENDY S. SISSON, ATTORNEY FOR THE CHILD, GENESEO.
Appeal from an order of the Supreme Court, Genesee County (Eric
R. Adams, A.J.), entered March 10, 2014 in a proceeding pursuant to
Family Court Act article 6. The order, among other things, adjudged
that the parties shall have joint legal custody of the subject child,
with primary residency with the mother.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Petitioner-respondent father and respondent-
petitioner mother are the parents of the child who is the subject of
this proceeding. Pursuant to a 2007 court order, the parties had
joint legal custody of the child with primary residency to the mother.
In late 2012, the mother’s living situation became uncertain, and the
father agreed to have the child live with him. The father prepared an
affidavit reciting that the father would have “primary custody” and
would have the child stay with him during the week and with the mother
on the weekends, and the mother signed the affidavit. In May 2013,
the mother requested that the child be returned to her for primary
residency, and the father denied the request. The father filed a
petition seeking to modify the 2007 order and grant him primary
residency of the child, while the mother filed a petition seeking to
-2- 722
CAF 14-00569
enforce the 2007 order. Supreme Court found that a change of
circumstances had occurred since the 2007 order, but the court
concluded that it was in the child’s best interests to continue joint
custody with primary residency with the mother.
The father contends that the court erred in not giving effect to
the parties’ 2012 agreement and that the mother was required to show a
change in circumstances from the time that the agreement was signed by
the mother. We reject that contention. The agreement, signed only by
the mother and not reduced to an order, was merely an informal
arrangement and simply a factor for the court to consider in making
its ultimate determination (see Matter of Thillman v Mayer, 85 AD3d
1624, 1625; Matter of Bruce BB. v Debra CC., 307 AD2d 408, 409).
Contrary to the father’s further contention, the court’s determination
that the best interests of the child would be served by granting
primary residency to the mother is supported by a sound and
substantial basis in the record (see Betro v Carbone, 5 AD3d 1110,
1110).
Entered: June 12, 2015 Frances E. Cafarell
Clerk of the Court