Opinion
May 10, 1999
Appeal from Order of Orleans County Family Court, Punch, J. — Custody.
PRESENT: DENMAN, P. J., PINE, PIGOTT, JR., CALLAHAN AND BALIO, JJ.
Order unanimously affirmed without costs. Memorandum: Respondent appeals from an order of Family Court that, following a hearing, granted the petition seeking sole custody of the parties' two children. The court thereby modified the existing joint custody arrangement with physical custody to respondent. That arrangement was pursuant to a prior order entered on consent and incorporated but not merged, by agreement of the parties, into the divorce judgment. Respondent contends that the court made erroneous factual findings that the determination is against the weight of the evidence and that petitioner failed to establish a change of circumstances. We disagree. Viewing the record as a whole, we conclude that the court properly determined that petitioner is better able to care for the children and that it would be in the best interests of the children to reside with petitioner.