Opinion
2014-05-7
Matter of GRAZIANI C.A. (Anonymous). Administration for Children's Services, petitioner; Lisa A. (Anonymous), respondent. (Proceeding No.1) Matter of Sissy M.P.A. (Anonymous). Administration for Children's Services, petitioner; Lisa A. (Anonymous), respondent. (Proceeding No. 2) Matter of Emilio P.P. (Anonymous), respondent, v. Lisa A. (Anonymous), appellant. (Proceeding Nos. 3 and 4).
David Laniado, Cedarhurst, N.Y., for appellant in Proceeding Nos. 3 and 4. Frederic P. Schneider, New York, N.Y., for respondent in Proceeding Nos. 3 and 4.
David Laniado, Cedarhurst, N.Y., for appellant in Proceeding Nos. 3 and 4. Frederic P. Schneider, New York, N.Y., for respondent in Proceeding Nos. 3 and 4.
Brian O'Halloran, Staten Island, N.Y., attorney for the children.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.
In two related neglect proceedings pursuant to Family Court Act article 10 and two related custody proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Richmond County (Wolff, J.), dated August 10, 2012, which, after a hearing, granted the father's petition to modify a prior custody order dated August 7, 2006, made on consent of the parties, so as to award him sole custody of the subject children.
ORDERED that the order dated August 10, 2012, is affirmed, without costs or disbursements.
The essential consideration in making an award of custody is the best interests of the children ( see Eschbach v. Eschbach, 56 N.Y.2d 167, 171–173, 451 N.Y.S.2d 658, 436 N.E.2d 1260;Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 447 N.Y.S.2d 893, 432 N.E.2d 765). “Factors to be considered include ‘the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent’ ” ( Kaplan v. Kaplan, 21 A.D.3d 993, 994, 801 N.Y.S.2d 391, quoting Miller v. Pipia, 297 A.D.2d 362, 364, 746 N.Y.S.2d 729;see Matter of Faunteleroy v. Mercado, 5 A.D.3d 482, 483, 772 N.Y.S.2d 562). The Family Court's custody determination, made after a hearing, is largely based upon an assessment of the parties' credibility with reference to their character, temperament, and sincerity, and should not be set aside unless lacking sound and substantial support in the record ( see Eschbach v. Eschbach, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260;Matter of Faunteleroy v. Mercado, 5 A.D.3d at 482, 772 N.Y.S.2d 562;Matter of Battista v. Fasano, 41 A.D.3d 712, 713, 838 N.Y.S.2d 178;Kaplan v. Kaplan, 21 A.D.3d at 995, 801 N.Y.S.2d 391).
Modification of an existing court-sanctioned custody arrangement is permissible only upon a showing that there has been a change in circumstances such that modification is necessary to ensure the continued best interests of the children ( see Matter of Chery v. Richardson, 88 A.D.3d 788, 788, 930 N.Y.S.2d 663;Matter of Conforti v. Conforti, 46 A.D.3d 877, 848 N.Y.S.2d 359;Matter of Strand–O'Shea v. O'Shea, 32 A.D.3d 398, 819 N.Y.S.2d 109;Matter of Rho v. Rho, 19 A.D.3d 605, 606, 796 N.Y.S.2d 550;Matter of Dow v. Dow, 306 A.D.2d 529, 530, 761 N.Y.S.2d 682). The court must consider the totality of the circumstances ( see Matter of Strand–O'Shea v. O'Shea, 32 A.D.3d at 398, 819 N.Y.S.2d 109). The evidence adduced at the hearing in the instant matter established that the mother's apartment had become a “harried and chaotic environment” that did not provide the subject children with the focused attention and structure they needed for success in school and intellectual development. Further, the evidence established that the mother had failed to provide appropriate medical attention to the children, who apparently suffered from seizure disorders and asthma. Accordingly, the record reflects that a change in circumstances had occurred, and the evidence supported the Family Court's determination that awarding sole custody of the subject children to the father was in their best interests ( see Matter of Conforti v. Conforti, 46 A.D.3d at 878, 848 N.Y.S.2d 359;Matter of Battista v. Fasano, 41 A.D.3d at 713, 838 N.Y.S.2d 178).
The mother's remaining contentions are without merit.
Accordingly, there is no basis upon which to disturb the Family Court's determination granting the father's petition to modify a prior custody order dated August 7, 2006, so as to award him sole custody of the subject children.