PAULINE v. RENELDER (2007)

 Respondent appeals from an order granting the petition seeking to modify the parties' existing joint custody arrangement, pursuant to which respondent had primary physical custody of the parties' child, by awarding primary physical custody of the child to petitioner.   Contrary to respondent's contention, Family Court did not fail to determine that there was a sufficient change in circumstances to warrant an examination of the child's best interests.  “Although Family Court did not specifically state that it found a sufficient change in circumstances, 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 Drew v. Gillin, 17 A.D.3d 719, 720, 792 N.Y.S.2d 691).   We also reject respondent's contention that the court erred in awarding primary physical custody to petitioner.   We conclude that the court's determination has a sound and substantial basis in the record (see Matter of Thayer v. Ennis, 292 A.D.2d 824, 825, 739 N.Y.S.2d 321;   Matter of Albert S. v. Pamela G.M., 291 A.D.2d 931, 737 N.Y.S.2d 196).   The record establishes that respondent is less fit than petitioner as a parent and is less able than petitioner to provide for the child's stability and physical, medical, educational, moral, and emotional well-being (see Matter of Vincent A.B. v. Karen T., 30 A.D.3d 1100, 1102, 816 N.Y.S.2d 637, lv. denied 7 N.Y.3d 711, 823 N.Y.S.2d 770, 857 N.E.2d 65;  Matter of Pinkerton v. Pensyl, 305 A.D.2d 1113, 1114, 757 N.Y.S.2d 921).

 Respondent failed to object to the testimony of a child protective services caseworker on the grounds now raised on appeal, and thus failed to preserve his current contention for our review (see generally Matter of Amy H. v. Chautauqua County Dept. of Social Servs., 13 A.D.3d 1048, 1050, 788 N.Y.S.2d 737;  Matter of Crystal A., 11 A.D.3d 897, 782 N.Y.S.2d 474).   Finally, although we agree with respondent that the court erred in permitting him to be cross-examined with respect to an accusation by the mother of one of his other children, we conclude that the error is harmless (see generally Matter of Christina A.M., 30 A.D.3d 1064, 1064-1065, 815 N.Y.S.2d 871, lv. denied 7 N.Y.3d 712, 824 N.Y.S.2d 604, 857 N.E.2d 1135;  Matter of Michael G., 300 A.D.2d 1144, 1145, 752 N.Y.S.2d 772).   The admissible evidence amply supports the court's determination, and it does not appear from the record that the court relied upon that inadmissible evidence in making its determination (see Michael G., 300 A.D.2d at 1145, 750 N.Y.S.2d 919;  Matter of Sherri M.K., 292 A.D.2d 868, 739 N.Y.S.2d 325).

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

MEMORANDUM: