Opinion
748 CAF 14-02146
06-19-2015
In the Matter of Christopher J. SCHIEBLE, Sr., Petitioner–Appellant, v. Michele R. SWANTEK, Respondent–Respondent.
Meade H. Versace, Rome, for Petitioner–Appellant. Diane Martin–Grande, Rome (Lucille M. Rignanese of Counsel), for Respondent–Respondent. John G. Koslosky, Attorney for The Child, Utica.
Meade H. Versace, Rome, for Petitioner–Appellant.
Diane Martin–Grande, Rome (Lucille M. Rignanese of Counsel), for Respondent–Respondent.
John G. Koslosky, Attorney for The Child, Utica.
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.
Opinion
MEMORANDUM:In this custody proceeding pursuant to Family Court Act article 6, petitioner father appeals from an order that denied his petition to modify a prior custody order that awarded sole legal custody and primary physical custody of the parties' child to respondent mother, except to the extent that the father was awarded additional visitation. Although we agree with the father that Family Court properly determined that there was a change in circumstances based on, inter alia, “incidents of domestic violence in the mother's household” (Matter of Pecore v. Blodgett, 111 A.D.3d 1405, 1405, 975 N.Y.S.2d 301, lv. denied 22 N.Y.3d 864, 2014 WL 1243626 ), we reject his contention that the court erred in determining that the existing custodial arrangement is in the child's best interests.
The father acknowledged at the hearing that the sole basis for his modification petition was that the mother was the victim of domestic abuse at the hands of her former boyfriend, with whom she had lived for several years. According to the father, the incidents of domestic violence in the mother's home rendered it unsafe for the child to reside there. The evidence at the hearing established, however, that the mother filed criminal charges against her abusive former boyfriend and obtained an order of protection against him. As a result, he no longer resides with the mother and has no relationship with her. The father otherwise had no issues with the mother's custody, and the record establishes that the 11–year old child had primarily resided with the mother for most of his life. Under the circumstances, and because the child appears to be thriving under the existing custodial arrangement, we conclude that the court's refusal to modify the existing arrangement is supported by a sound and substantial basis in the record and thus should not be disturbed (see Wideman v. Wideman, 38 A.D.3d 1318, 1319, 834 N.Y.S.2d 405 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.