IN RE: Daniel N.

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Supreme Court, Appellate Division, First Department.

IN RE: Daniel N., Petitioner–Appellant, v. Joy N., Respondent–Respondent.

1114– 1115

Decided: May 10, 2016

Friedman, J.P., Acosta, Moskowitz, Kapnick, Gesmer, JJ. Law Offices of Susan Barrie, New York (Susan Barrie of counsel), for appellant. Kaminer Kouzi & Associates LLP, New York (Jennifer Kouzi of counsel), for respondent.


Order, Family Court, New York County (Gloria Sosa–Lintner, J.), entered on or about October 9, 2014, which, to the extent appealed from as limited by the briefs, after a hearing, denied the petition to modify the parties' custody order, unanimously affirmed, without costs.  Appeal from order, same court and Judge, entered on or about December 6, 2011, which ordered a forensic evaluation, unanimously dismissed, without costs, as abandoned.

Petitioner failed to establish that there has been a change in circumstances warranting modification of the custody order (see e.g. Matter of Iris R. v. Jose R., 74 AD3d 457 [1st Dept 2010] ).  That the custody order was entered on consent does not relieve him of the burden of proof on that issue (see id.).  Petitioner failed to substantiate any ill effects on the child arising from respondent's move, any deficiencies in respondent's provision of medical care to the child, or any disruption of the child's mid-week communication with petitoner.  Moreover, the move is within the area permitted by the custody order (see Matter of Molinari v. Tuthill, 59 AD3d 722, 723 [2d Dept 2009] ).

Although the requisite change in circumstances has not been shown, we note that a consideration of the best interests of the child supports the determination that the child should remain with respondent.  Petitioner argues that the court failed to take into account the child's expressed preference to live with him.  However, the child's desire is “but one factor to be considered,” not determinative (Eschbach v. Eschbach, 56 N.Y.2d 167, 173 [1982] ).  Moreover, the child has since expressed a preference to refrain from taking a position.