Willard v. Smith

Appeal from an order of Family Court, Cattaraugus County (Kelly, J.H.O.), entered June 20, 2002, which awarded the parties joint custody of their children with primary residence to petitioner and visitation to respondent. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Respondent appeals from an order that modified the custody arrangement agreed upon by the parties in a stipulation of settlement that was incorporated but not merged in their judgment of divorce in 1997. Contrary to respondent’s contention, petitioner established that respondent is less fit to provide the stability needed by their children, particularly in view of the special needs of their son (see Matter of Ammann v Ammann, 209 AD2d 1032, 1033 [1994]). We agree with petitioner that Family Court properly determined that the “ ‘change in [placement] to him is in the best interests of the child [ren]’ ” (Matter of Bush v Bush, 229 AD2d 918, 918 [1996], quoting Ammann, 209 AD2d at 1034). We reject the further contention of respondent that she was denied due process. Present — Green, J.P., Wisner, Burns, Gorski and Hayes, JJ.