Walker v. Cameron

Respondent mother appeals from an order that, inter alia, granted the petition seeking to modify the custody and visitation provisions of the judgment of divorce by awarding primary physical custody of the parties’ children to

We agree with the mother that Family Court erred in awarding primary physical custody of the parties’ children to the father. Even assuming, arguendo, that the father made “ ‘a sufficient evidentiary showing of a change in circumstances to require a hearing on the issue whether the existing custody [provisions] should be modified’ ” (Matter of Hughes v Davis, 68 AD3d 1674 , 1675 [2009]), we nevertheless conclude that it is in the best interests of the children for primary physical custody to remain with the mother (see generally Matter of Louise E.S. v W. Stephen S., 64 NY2d 946 , 947 [1985]). The record establishes that the mother has been the children’s primary caregiver throughout their lives (see Sitts v Sitts, 74 AD3d 1722 , 1723 [2010]). In addition, the record establishes that the children have a close relationship with the half sibling residing in the mother’s home. Although “the presence of [a] half sibling[ ] ... is not dispositive, . . . it is a factor to be considered in making custody determinations” (Matter of Slade v Hosack, 77 AD3d 1409 [2010]; see Eschbach v Eschbach, 56 NY2d 167 , 173 [1982]). We therefore reverse the order and dismiss the petition. Present — Fahey, J.E, Peradotto, Lindley, Sconiers and Green, JJ.