Opinion
364 CAF 18–01916
04-26-2019
In the Matter of Matthew J. KINNE, Petitioner–Respondent, v. Amanda L. BYRD, Respondent–Appellant.
CONBOY, MCKAY, BACHMAN & KENDALL, LLP, WATERTOWN (LAWRENCE D. HASSELER OF COUNSEL), FOR RESPONDENT–APPELLANT. PETER J. DIGIORGIO, JR., UTICA, FOR PETITIONER–RESPONDENT. MATTHEW A. GOETTEL, RODMAN, ATTORNEY FOR THE CHILD.
CONBOY, MCKAY, BACHMAN & KENDALL, LLP, WATERTOWN (LAWRENCE D. HASSELER OF COUNSEL), FOR RESPONDENT–APPELLANT.
PETER J. DIGIORGIO, JR., UTICA, FOR PETITIONER–RESPONDENT.
MATTHEW A. GOETTEL, RODMAN, ATTORNEY FOR THE CHILD.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 6, respondent mother appeals from an order that, inter alia, modified the parties' existing custody arrangement by awarding petitioner father primary physical custody of the subject child. Contrary to the mother's contention, the father met his burden of establishing the requisite change of circumstances to warrant an inquiry into whether modification of the custody arrangement is in the best interests of the child (see Matter of Greene v. Kranock, 160 A.D.3d 1476, 1476, 74 N.Y.S.3d 826 [4th Dept. 2018] ). The testimony established that the mother failed to seek any dental treatment for the child until he was four years old and suffering from a severe toothache (see Matter of Owens v. Garner, 63 A.D.3d 1585, 1586, 881 N.Y.S.2d 251 [4th Dept. 2009] ; see also Matter of Hurlburt v. Behr, 70 A.D.3d 1266, 1268, 897 N.Y.S.2d 271 [3d Dept. 2010], lv dismissed 15 N.Y.3d 943, 915 N.Y.S.2d 214, 940 N.E.2d 919 [2010] ). When the child was eventually examined by a dentist in August 2016, it was determined that he was at high risk for tooth decay and needed tooth extractions, crowns, and "pulpal therapy." The mother nonetheless failed to seek any treatment for the child's pressing dental problems during the ensuing months. By the time the father became aware of the child's significant dental needs in May 2017, the child was suffering from a toothache that made it difficult for him to eat. We thus conclude that there was a change in circumstances based on the mother's demonstrated lack of concern for the child's dental needs and her failure to timely obtain necessary dental treatment (see Matter of Kvasny v. Sherrick, 155 A.D.3d 1366, 1366–1367, 65 N.Y.S.3d 342 [3d Dept. 2017] ).
Contrary to the mother's further contention, we conclude that Family Court properly determined that it is in the best interests of the child to modify the parties' existing custody arrangement by awarding the father primary physical custody of the child. The record establishes that the court's determination resulted from a "careful weighing of [the] appropriate factors ..., and ... has a sound and substantial basis in the record" ( Matter of Biernbaum v. Burdick, 162 A.D.3d 1664, 1665, 80 N.Y.S.3d 761 [4th Dept. 2018] [internal quotation marks omitted]; see generally Fox v. Fox, 177 A.D.2d 209, 210, 582 N.Y.S.2d 863 [4th Dept. 1992] ).