IN RE: Antwan WALKER

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

IN RE: Antwan WALKER, Petitioner–Respondent, v. Jamika CAMERON, Respondent–Appellant.

Decided: October 07, 2011

PRESENT:  FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GREEN, JJ. Charles J. Greenberg, Buffalo, for Respondent–Appellant. Rebecca J. Talmud, Attorney for the Child, Williamsville, for Antwan E.W., Jr. Melissa A. Cavagnaro, Attorney For The Child, Buffalo, for Diamond S.W.

 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 petitioner father.   We note at the outset that the mother failed to include in the record on appeal the judgment of divorce.  “Although [such an] ‘omission ․ ordinarily would result in dismissal of the appeal ․, there is no dispute’ ” concerning the custody provisions contained in the judgment, and we therefore reach the merits (Matter of Carey v. Windover, 85 A.D.3d 1574, 1574, 925 N.Y.S.2d 360;  see Matter of Dann v. Dann, 51 A.D.3d 1345, 1346–1347, 858 N.Y.S.2d 844).

 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 A.D.3d 1674, 1675, 890 N.Y.S.2d 874), 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 N.Y.2d 946, 947, 488 N.Y.S.2d 637, 477 N.E.2d 1091).   The record establishes that the mother has been the children's primary caregiver throughout their lives (see Sitts v. Sitts, 74 A.D.3d 1722, 1723, 902 N.Y.S.2d 274).   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 A.D.3d 1409, 908 N.Y.S.2d 784;  see Eschbach v. Eschbach, 56 N.Y.2d 167, 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260).   We therefore reverse the order and dismiss the petition.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the petition is dismissed.

MEMORANDUM: