STACEY v. KIMBERLY (2004)

 Family Court properly granted sole custody of the parties' child to petitioner father, with visitation to respondent mother.  “It is well established that alteration of an established custody arrangement will be ordered only upon a showing of a change in circumstances which reflects a real need for change to ensure the best interest[s] of the child” (Matter of Irwin v. Neyland, 213 A.D.2d 773, 773, 623 N.Y.S.2d 18;  see Matter of Williams v. Tucker, 2 A.D.3d 1366, 1367, 770 N.Y.S.2d 229, lv. denied 2 N.Y.3d 705, 780 N.Y.S.2d 310, 812 N.E.2d 1260), and “[a] change of custody should be made only if the totality of the circumstances warrants a change that is in the best interests of the child” (Matter of Salvati v. Salvati, 221 A.D.2d 541, 542, 633 N.Y.S.2d 819, appeal dismissed 87 N.Y.2d 954, 641 N.Y.S.2d 827, 664 N.E.2d 893, lv. denied 88 N.Y.2d 803, 645 N.Y.S.2d 445, 668 N.E.2d 416;  see Matter of Maher v. Maher, 1 A.D.3d 987, 988, 767 N.Y.S.2d 179).   Here, the record establishes that, since entry of the initial custody order, respondent had abused or neglected the child and entered into two romantic relationships involving issues of domestic violence.   Those factors combined constitute “ ‘a change of circumstances warranting a reexamination of the existing custody arrangement’ ” (Maher, 1 A.D.3d at 988, 767 N.Y.S.2d 179, quoting Matter of Muniz v. Paradizo, 258 A.D.2d 970, 970, 687 N.Y.S.2d 913).

 We further conclude that the court properly determined that a change in custody was in the best interests of the child (see generally Eschbach v. Eschbach, 56 N.Y.2d 167, 172-173, 451 N.Y.S.2d 658, 436 N.E.2d 1260).   Contrary to respondent's contention, the court did not improperly separate the child from her siblings.   Although “[c]ourts should be reluctant to separate siblings” (Salerno v. Salerno, 273 A.D.2d 818, 819, 708 N.Y.S.2d 539;  see Matter of Ebert v. Ebert, 38 N.Y.2d 700, 704, 382 N.Y.S.2d 472, 346 N.E.2d 240), both petitioner and respondent have other children and, therefore, custody to either parent necessarily separates the child from some of her siblings.

 Respondent did not preserve for our review her contention that the court erred in admitting hearsay statements of the child in violation of Family Ct. Act § 1046(a)(iv) (see Matter of Tracy v. Tracy, 309 A.D.2d 1252, 1253, 765 N.Y.S.2d 548;  Matter of Peter S. v. Cheryl A.S., 190 A.D.2d 1038, 1039, 593 N.Y.S.2d 656).   In any event, such statements are properly admitted where, as here, there are allegations of abuse or neglect and the statements are corroborated (see Matter of Rosario WW. v. Ellen WW., 309 A.D.2d 984, 987, 765 N.Y.S.2d 710;  Peter S., 190 A.D.2d at 1039, 593 N.Y.S.2d 656;  see also Matter of Nilda S. v. Dawn K., 302 A.D.2d 237, 238, 754 N.Y.S.2d 281, lv. denied 100 N.Y.2d 512, 766 N.Y.S.2d 166, 798 N.E.2d 350).   Finally, we conclude that the court did not impermissibly consider respondent's prior abortion in rendering its custody determination.   Rather, the court considered respondent's unstable lifestyle and the circumstances surrounding respondent's decision to have an abortion, including the incidents of domestic violence between respondent and the purported father of that unborn child.   In any event, even without consideration of that fact, there is ample evidence supporting the court's determination of custody.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: