Stanton v. Kelso

• Citation: 148 A.D.3d 1809,50 N.Y.S.3d 785
• Decision Date: 31 March 2017
• Docket Number: 426 CAF 15-01709.
• Parties: In the Matter of Frank L. STANTON, Petitioner–Respondent, v. Nina M. KELSO, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

148 A.D.3d 1809
50 N.Y.S.3d 785

In the Matter of Frank L. STANTON, Petitioner–Respondent,
v.
Nina M. KELSO, Respondent–Appellant.

426 CAF 15-01709.

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

March 31, 2017.

50 N.Y.S.3d 785

Bridget L. Field, Rochester, for Respondent–Appellant.

Brian P. Degnan, Attorney for The Child, Batavia.

50 N.Y.S.3d 786

PRESENT: WHALEN, P.J., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM:

Respondent mother appeals from an order that continued joint custody of the parties' son but transferred primary physical custody of the child to petitioner father, with visitation to the mother. Where, as here, the parties' existing custody arrangement is based on a consent order, which is "entitled to less weight than a disposition after a plenary trial" (Matter of Alexandra H. v. Raymond B.-H., 37 A.D.3d 1125, 1126, 829 N.Y.S.2d 778 [internal quotation marks omitted] ), Family Court "cannot modify that order unless a sufficient change in circumstances—since the time of the stipulation—has been established, and then only where a modification would be in the best interests of the child[ ]" (Matter of Hight v. Hight, 19 A.D.3d 1159, 1160, 796 N.Y.S.2d 494 [internal quotation marks omitted]; see Matter of Stevenson v. Smith, 145 A.D.3d 1598, 1599, 43 N.Y.S.3d 832 ). The court's determination in a custody matter " ‘is entitled to great deference and will not be disturbed where’ ... it is based on a careful weighing of appropriate factors" (Stevenson, 145 A.D.3d at 1598, 43 N.Y.S.3d 832 ; see Matter of Pinkerton v. Pensyl, 305 A.D.2d 1113, 1113–1114, 757 N.Y.S.2d 921 ).

Contrary to the mother's contention, we conclude that the father established the requisite change in circumstances since the entry of the consent order, namely, the child's repeated changes of schools, his recent attendance at a school in the district where the father resides, and the parents' inability to agree on where their child should attend school (see ...