Smith v. Lopez

• Decision Date: 06 July 2018
• Docket Number: CAF 17–00603,466
• Citation: 80 N.Y.S.3d 836,163 A.D.3d 1406
• Parties: In the Matter of Korey W. SMITH, Petitioner–Respondent, v. Kassi L. LOPEZ, Respondent–Appellant. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

163 A.D.3d 1406
80 N.Y.S.3d 836

In the Matter of Korey W. SMITH, Petitioner–Respondent,
v.
Kassi L. LOPEZ, Respondent–Appellant. (Appeal No. 1.)

466
CAF 17–00603

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: July 6, 2018

80 N.Y.S.3d 837

FRANK H. HISCOCK, LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR RESPONDENT–APPELLANT.

HANCOCK ESTABROOK, LLP, SYRACUSE (JANET D. CALLAHAN OF COUNSEL), FOR PETITIONER–RESPONDENT.

HEIDI S. CONNOLLY, SKANEATELES, ATTORNEY FOR THE CHILD.

PRESENT: SMITH, J.P., CENTRA, NEMOYER, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

Appeal from an order of the Family Court, Onondaga County (William Rose, R.), entered February 1, 2017 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: Petitioner-respondent father commenced this proceeding pursuant to Family Court Act article 6 and, by amended petition, sought to modify a prior order of custody by awarding him primary physical custody of the subject child. Respondent-petitioner mother filed an amended cross petition also seeking modification of the prior custody order by awarding her primary physical custody, and other relief. The mother appeals from an order that, among other things, denied and dismissed her amended cross petition, and granted the amended petition. We reject the mother's contention that Family Court erred in awarding primary physical custody to the father.

The mother contends that the court erred in failing to make a specific finding of the requisite change in circumstances and erred insofar as it implicitly concluded that there had been such a change. We disagree with the latter contention. Initially, although the court failed to expressly determine whether there had been a sufficient change in circumstances to warrant an inquiry into the best interests of the child on the issue of custody, " ‘our review of the record reveals extensive findings of fact, placed on the record by Family Court, which demonstrate unequivocally that a significant change in circumstances occurred since the entry of the consent custody order’ " ( Matter of Morrissey v. Morrissey, 124 A.D.3d 1367, 1367, 1 N.Y.S.3d 678 [4th Dept. 2015], lv denied 25 N.Y.3d 902, 2015 WL 1471754 [2015] ; see Matter of Aronica v. Aronica, 151 A.D.3d 1605, 1605, 56 N.Y.S.3d 701 [4th Dept. 2017] ).

Furthermore, the evidence supports the court's implicit conclusion that the father, as the "party seeking a change in an established custody arrangement[,] ... show[ed] a change in circumstances [that] reflects a real...