Maria A.M. v. Dextor N.

95 A.D.3d 578, 944 N.Y.S.2d 91

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 10, 2012
• Status: Published

Opinion

Order, Family Court, New York County (Elizabeth Barnett, Referee), entered on or about July 29, 2010, which, after a hearing, dismissed respondent father’s petition alleging that petitioner mother violated a prior custody and visitation order, granted petitioner’s cross petition to modify the order of custody and awarded petitioner sole legal and physical custody of the subject child while awarding respondent liberal visitation, unanimously affirmed, without costs.

The award of custody to the child’s mother has a sound and substantial basis in the record (see Matter of James Joseph M. v Rosana R., 32 AD3d 725, 726 [2006], lv denied 7 NY3d 717 [2006]). Respondent acknowledged that the child does not wish to live with him, there was testimony that, on at least one occasion, the police were called and arrested the child after she had an altercation with respondent, and the child, who will soon turn 18, has requested to live with her mother and younger half sibling. Given this evidence, petitioner established that there has been a change in circumstances since the April 29, 2009 custody and visitation order and stipulation were entered, and that the change in custody from respondent to petitioner is in the child’s best interests (see Matter of O’Connor v Dyer, 18 AD3d 757, 757-758 [2005]).

Respondent’s hearing counsel called petitioner as a witness but did not request that she be declared a hostile witness and made no showing that she was either lying or unwilling to answer his questions. Thus, the referee properly sustained the objection to the leading questions counsel asked petitioner (see Matter of Amanda L., 302 AD2d 1004 [2003]). Concur — Friedman, J.P., Sweeny, DeGrasse, Abdus-Salaam and Román, JJ.