SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
523
CAF 13-01536
PRESENT: CENTRA, J.P., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.
IN THE MATTER OF CHARLES L. HIGGINS,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
JESSE M. HIGGINS, RESPONDENT-APPELLANT.
BRIDGET L. FIELD, ROCHESTER, FOR RESPONDENT-APPELLANT.
CHARLES L. HIGGINS, PETITIONER-RESPONDENT PRO SE.
PETER M. CASEY, ATTORNEY FOR THE CHILDREN, BATAVIA.
Appeal from an order of the Family Court, Genesee County (Eric R.
Adams, J.), entered August 15, 2013 in a proceeding pursuant to Family
Court Act article 6. The order, inter alia, awarded petitioner
primary physical placement of the subject children.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Respondent mother appeals from an order that,
insofar as appealed from, awarded petitioner father primary physical
placement of the subject children. The mother contends that Family
Court erred in determining that there was the requisite showing of a
change in circumstances to warrant modification of the existing
custody arrangement. We reject that contention. “ ‘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[ren]’ ” (Amy L.M. v Kevin M.M., 31 AD3d 1224, 1225). Here, the
father established the requisite change in circumstances by showing
that the mother’s residence “had become a ‘harried and chaotic
environment’ that did not provide the subject children with the
focused attention and structure they needed” (Matter of Graziani C.A.
[Lisa A.], 117 AD3d 729, 730). Contrary to the mother’s further
contention, we conclude that there is a sound and substantial basis in
the record to support the court’s determination that it was in the
children’s best interests to award primary physical placement to the
father (see Matter of Marino v Marino, 90 AD3d 1694, 1695-1696; see
also Matter of Tarrant v Ostrowski, 96 AD3d 1580, 1582, lv denied 20
NY3d 855). Considering that “a court’s determination regarding
custody . . . issues, based upon a first-hand assessment of the
credibility of the witnesses after an evidentiary hearing, is entitled
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CAF 13-01536
to great weight” (Marino, 90 AD3d at 1695 [internal quotation marks
omitted]), we perceive no basis upon which to set aside the court’s
award of primary physical placement of the children to the father.
Finally, we reject the mother’s contention that she was deprived
of a fair hearing because the court improperly admitted hearsay
statements in evidence. Any error is harmless inasmuch as the court
placed minimal, if any, reliance on those hearsay statements, and the
evidence is otherwise sufficient to support the court’s determination
(see Matter of Tracy v Tracy, 309 AD2d 1252, 1253; Matter of Jelenic v
Jelenic, 262 AD2d 676, 678; Matter of Liza C. v Noel C., 207 AD2d 974,
974).
Entered: May 1, 2015 Frances E. Cafarell
Clerk of the Court