Opinion
2017–10346 Docket No. V–9205–16/16A
12-19-2018
In the Matter of Sinem DOKMECI, Appellant, v. Joseph HERBERT, Respondent.
Morningside Heights Legal Services, Inc., New York, N.Y. (Philip M. Genty of counsel), for appellant. Ngozi Rosaline Asonye, Freeport, NY, for respondent. Amy L. Colvin, Huntington, NY, attorney for the child.
Morningside Heights Legal Services, Inc., New York, N.Y. (Philip M. Genty of counsel), for appellant.
Ngozi Rosaline Asonye, Freeport, NY, for respondent.
Amy L. Colvin, Huntington, NY, attorney for the child.
ALAN D. SCHEINKMAN, P.J., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDERIn a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Nassau County (Ayesha K. Brantley, J.), dated August 31, 2017. The order, after a hearing, dismissed the mother's petition to modify a prior order of custody and parental access dated May 7, 2015.
ORDERED that the order dated August 31, 2017, is affirmed, without costs or disbursements."In order to modify an existing custody or [parental access] 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 A.D.3d 561, 562, 906 N.Y.S.2d 590 [citation and internal quotation marks omitted]; see Matter of Lamarche v. Rooks, 142 A.D.3d 707, 36 N.Y.S.3d 891 ; Matter of Oakley v. Cond–Arnold, 130 A.D.3d 737, 15 N.Y.S.3d 57 ; Matter of Leichter–Kessler v. Kessler, 71 A.D.3d 1148, 1148–1149, 897 N.Y.S.2d 639 ; Matter of Arduino v. Ayuso, 70 A.D.3d 682, 682, 892 N.Y.S.2d 885 ). The best interests of the child are determined by an examination of the totality of the circumstances (see Eschbach v. Eschbach, 56 N.Y.2d 167, 172, 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 ; Matter of Peralta v. Irrizary, 76 A.D.3d 561, 906 N.Y.S.2d 590 ; Matter of Arduino v. Ayuso, 70 A.D.3d 682, 892 N.Y.S.2d 885 ). The factors to be considered include "whether the alleged change in circumstances suggests that one of the parties is unfit to parent, the nature and quality of the relationships between the child and each of the parties, the ability of each parent to provide for the child's emotional and intellectual development, the parental guidance that the custodial parent provides for the child, and the effect an award of custody to one parent might have on the child's relationship with the other parent" ( Matter of Connolly v. Walsh, 126 A.D.3d 691, 693, 5 N.Y.S.3d 241 ; see Matter of Zall v. Theiss, 144 A.D.3d 831, 40 N.Y.S.3d 555 ). In addition to these factors, the court must also " ‘consider the stability and continuity afforded by maintaining the present arrangement’ " ( Matter of McDonough v. McDonough, 73 A.D.3d 1067, 1068, 899 N.Y.S.2d 892, quoting Matter of Lightbody v. Lightbody, 42 A.D.3d 537, 537–538, 840 N.Y.S.2d 131 ; see Matter of DeVita v. DeVita, 143 A.D.3d 981, 982, 39 N.Y.S.3d 527 ; Angelova v. Ruchinsky, 126 A.D.3d 828, 829, 6 N.Y.S.3d 97 ).
Since any custody determination necessarily depends to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded the hearing court's findings in this regard, and its findings will not be disturbed unless lacking a sound and substantial basis in the record (see Matter of Estrada v. Palacios, 148 A.D.3d 804, 50 N.Y.S.3d 292 ; Matter of Lamarche v. Rooks, 142 A.D.3d 707, 36 N.Y.S.3d 891 ; Matter of Jones v. Leppert, 75 A.D.3d 552, 904 N.Y.S.2d 503 ; Cuccurullo v. Cuccurullo, 21 A.D.3d 983, 984, 801 N.Y.S.2d 360 ).
Here, the Family Court's determination that the mother failed to show that there was a change of circumstances warranting a modification of custody in the child's best interests is supported by a sound and substantial basis in the record (see Matter of Lamarche v. Rooks, 142 A.D.3d 707, 36 N.Y.S.3d 891 ; Matter of Oakley v. Cond–Arnold, 130 A.D.3d 737, 15 N.Y.S.3d 57 ; Matter of Demille v. Pizzo, 129 A.D.3d 957, 12 N.Y.S.3d 185 ). Accordingly, the court's determination will not be disturbed.
SCHEINKMAN, P.J., LEVENTHAL, MALTESE and BRATHWAITE NELSON, JJ., concur.