SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
282
CAF 11-02203
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND WHALEN, JJ.
IN THE MATTER OF LAWRENCE C. NELSON,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
MARIE L. MORALES, RESPONDENT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR RESPONDENT-APPELLANT.
LAW OFFICE OF MARK A. YOUNG, ROCHESTER (BRIDGET L. FIELD OF COUNSEL),
FOR PETITIONER-RESPONDENT.
Appeal from an order of the Family Court, Monroe County (Thomas
W. Polito, R.), entered August 31, 2011 in a proceeding pursuant to
Family Court Act article 6. The order, among other things, awarded
petitioner primary physical custody of the subject child.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: In this custody proceeding pursuant to article 6 of
the Family Court Act, respondent mother appeals from an order
modifying a prior custody order by awarding primary physical custody
of the parties’ teenage child to petitioner father. The prior order,
issued in 1999 when the child was almost two years old, awarded
primary physical custody to the mother. In 2007, the father moved to
modify the 1999 order but his petition was dismissed following a
hearing, Family Court having determined that he failed to prove a
sufficient change of circumstances to warrant modification. The
father commenced this modification proceeding in July 2010, but this
time the court granted his petition, determining that the father had
established a change of circumstances since the prior order and that
it was in the best interests of the child to reside primarily with the
father. The mother contends on appeal that the court erred in
considering her pre-2007 changes in residence in determining that
there had been a change in circumstances inasmuch as those changes
were considered in the prior custody hearing and thus are barred by
res judicata from consideration herein. We reject that contention.
“It is well settled that ‘[a] party seeking a change in an established
custody arrangement must show a change in circumstances [that]
reflects a real need for change to ensure the best interest[s] of the
child’ ” (Matter of Moore v Moore, 78 AD3d 1630, 1630, lv denied 16
NY3d 704; see Matter of Crudele v Wells [appeal No. 2], 99 AD3d 1227,
-2- 282
CAF 11-02203
1228; Matter of Maher v Maher, 1 AD3d 987, 988).
Here, the court properly considered the mother’s pre-2007 changes
in residence as background information, in determining the
significance of the mother’s post-2007 change in residence (see
generally Matter of Tarrant v Ostrowski, 96 AD3d 1580, 1581, lv
denied 20 NY3d 855; Matter of Gardner v Gardner, 69 AD3d 1243, 1244-
1245). In any event, even assuming, arguendo, that the court erred in
considering her pre-2007 changes in residence, we conclude that the
other evidence, including the child’s statements at the Lincoln
hearing, was sufficient to establish a change in circumstances.
Entered: March 22, 2013 Frances E. Cafarell
Clerk of the Court