Gorniok v. Zeledon-Mussio

95 A.D.3d 1012, 944 N.Y.S.2d 257

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 2012
• Status: Published

Opinion

In a child custody and visitation proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Suffolk County (Genchi, J.), dated August 19, 2011, as, after a hearing, granted the father’s petition to modify a custody and visitation order of the same court (Snellenburg II, J.H.O.), dated January 13, 2010, so as to award him sole legal and physical custody of the subject child.

Ordered that the order dated August 19, 2011, is affirmed insofar as appealed from, with costs.

“ ‘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]; see Matter of Francois v Grimm, 84 AD3d 1082, 1082 [2011]; Matter of Garcia v Fountain, 82 AD3d 979 [2011]). “ ‘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, or are contrary to the weight of the evidence’ ” (Matter of Chabotte v Faella, 77 AD3d 749, 749-750 [2010], quoting Trinagel v Boyar, 70 AD3d 816, 816 [2010]; see Matter of Francois v Grimm, 84 AD3d at 1082; Matter of Garcia v Fountain, 82 AD3d at 979).

Here, the Family Court’s determination that there was a change in circumstances since the issuance of the order dated January 13, 2010, and that it was in the subject child’s best interest to award sole legal and physical custody of the child to the father, is supported by a sound and substantial basis in the record (see Matter of Caravella v Toale, 78 AD3d 828 [2010]; Matter of McClurkin v Bailey, 78 AD3d 707, 707-708 [2010]; Matter of Chabotte v Faella, 77 AD3d at 750). Florio, J.P., Balkin, Lott and Miller, JJ., concur.