Vasquez-Williams v. Williams

32 A.D.3d 859, 821 N.Y.S.2d 226

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 12, 2006
• Status: Published

Opinion

In a custody proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (MacKenzie, J.), dated August 24, 2005, which, after a hearing, inter alia, granted the mother’s petition to modify the custody provisions of the parties’ judgment of divorce and awarded her sole custody of the subject children.

Ordered that the order is affirmed, with costs.

A parent seeking a change in custody must make an initial evidentiary showing sufficient to warrant a hearing (see McNally v McNally, 28 AD3d 526 [2006]; Smoczkiewicz v Smoczkiewicz, 2 AD3d 705 [2003]; Corigliano v Corigliano, 297 AD2d 328, 329 [2002]; Teuschler v Teuschler, 242 AD2d 289 [1997]). Contrary to the father’s contention, the mother’s allegations that he imposed excessive and inappropriate discipline on the subject children, including corporal punishment, was sufficient to warrant a hearing.

“A change of custody should be made only if the totality of the circumstances warrants a modification” (Corigliano v Corigliano, supra at 329; see Friederwitzer v Friederwitzer, 55 NY2d 89, 95-96 [1982]). On this record, we discern no basis to disturb the Family Court’s determination, made after a hearing and in camera interviews with the subject children (see Matter of Lincoln v Lincoln, 24 NY2d 270, 272 [1969]), that it was in their best interests to award custody to the mother (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Friederwitzer v Friederwitzer, supra at 93-95).

The father’s remaining contentions are without merit. Florio, J.P., Goldstein, Mastro and Fisher, JJ., concur.