Davis v. Pignataro

97 A.D.3d 677, 948 N.Y.2d 378

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 11, 2012
• Status: Published

Opinion

“ ‘In order to modify an existing custody or visitation arrangement, there must be a showing that there has been a change in circumstances such that modification is required to protect the best interests of the child’ ” (Matter of Peralta v Irrizary, 76 AD3d 561, 562 [2010], quoting Matter of Arduino v Ayuso, 70 AD3d 682, 682 [2010]). “ ‘The best interests of the child are determined by a review of the totality of the circumstances’ ” (Matter of Jackson v Coleman, 94 AD3d 762, 763 [2012], quoting Matter of Skeete v Hamilton, 78 AD3d 1187, 1188 [2010]; see Matter of Solovay v Solovay, 94 AD3d 898 [2012], lv denied 19 NY3d 808 [2012]). “Since any custody determination depends to a very great extent upon the hearing court’s assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties, its findings are generally accorded great respect and will not be disturbed unless they lack a sound and substantial basis in the record” (Matter of Chabotte v Faella, 77 AD3d 749, 749-750 [2010] [internal quotation marks omitted]).

Here, contrary to the father’s arguments, the Supreme Court properly considered the totality of the circumstances, and its determination was supported by a sound and substantial basis in the record. Thus, the court’s determination will not be disturbed (see Matter of Solovay v Solovay, 94 AD3d 898 [2012]; Matter of Jackson v Coleman, 94 AD3d 762 [2012]; Neuman v Neuman, 19 AD3d 383, 384 [2005]; Maloney v Maloney, 208 AD2d 603, 603 [1994]).

Moreover, there is no merit to the father’s contention that the Supreme Court was unfairly biased against him. “The inquiry on appeal is limited to whether the judge’s bias, if any, unjustly affected the result to the detriment of the complaining party” (Schwartzberg v Kingsbridge Hgts. Care Ctr., Inc., 28 AD3d 465, 466 [2006]; see State Div. of Human Rights v Merchants Mut. Ins. Co., 59 AD2d 1054, 1056 [1977]). Here, the record contains no evidence of such bias (see Hoey v Rawlings, 51 AD3d 868, 869 [2008]; Lorenzo v Mass, Inc., 31 AD3d 616, 617 [2006]). Rivera, J.P., Florio, Eng and Roman, JJ., concur.