Opinion
2013-03-6
In the Matter of Jerome G. GRIFFIN, Jr., respondent, v. Nikiea MOORE–JAMES, appellant.
Arza Feldman, Uniondale, N.Y. (Steven Feldman of counsel), for appellant. Marina M. Martielli, East Quogue, N.Y., for respondent.
Arza Feldman, Uniondale, N.Y. (Steven Feldman of counsel), for appellant. Marina M. Martielli, East Quogue, N.Y., for respondent.
Robert C. Mitchell, Riverhead, N.Y. (John B. Belmonte of counsel), attorney for the child.
REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.
In a custody and visitation proceeding pursuant to Family Court Act article 6, the mother appeals from (1) an order of the Family Court, Suffolk County (Lechtrecker, Ct. Atty. Ref.), dated September 15, 2010, which, after a hearing, granted the father's petition to modify a prior order of the same court dated January 4, 2010, awarding sole custody of the parties' child to the mother, subject to parenting time by the father, so as to award custody of the parties' child to the father, and (2) an order of the same court dated December 22, 2010, which awarded the mother only parenting time.
ORDERED that the orders are affirmed, without costs or disbursements.
“ ‘Since any custody determination depends to a 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 deference and will not be disturbed unless they lack a sound and substantial basis in the record’ ” ( Matter of O'Loughlin v. Sweetland, 98 A.D.3d 983, 984, 951 N.Y.S.2d 160, quoting Matter of Skeete v. Hamilton, 78 A.D.3d 1187, 1188, 911 N.Y.S.2d 667;see Matter of Nell v. Nell, 87 A.D.3d 541, 542, 928 N.Y.S.2d 312 [internal quotation marks omitted] ).
To modify an existing custody arrangement, there must be a showing of a change in circumstances such that modification is required to protect the best interests of the child ( see Matter of O'Loughlin v. Sweetland, 98 A.D.3d at 983, 951 N.Y.S.2d 160;Matter of Sparacio v. Fitzgerald, 73 A.D.3d 790, 899 N.Y.S.2d 640;Matter of Russell v. Russell, 72 A.D.3d 973, 974, 900 N.Y.S.2d 106;Trinagel v. Boyar, 70 A.D.3d 816, 893 N.Y.S.2d 636). The best interests of the child are determined by a review of the totality of the circumstances ( see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260;Matter of O'Loughlin v. Sweetland, 98 A.D.3d at 984, 951 N.Y.S.2d 160). One factor to be considered is the willingness of the custodial parent to assure meaningful contact between the child and the other parent ( see Matter of Vasquez v. Ortiz, 77 A.D.3d 962, 909 N.Y.S.2d 155;Matter of Jules v. Corriette, 76 A.D.3d 1016, 1017, 908 N.Y.S.2d 89;Cuccurullo v. Cuccurullo, 21 A.D.3d 983, 984, 801 N.Y.S.2d 360). Accordingly, interference by the custodial parent with the noncustodial parent's right to visitation may constitute a change in circumstances sufficient to warrant a change in custody ( see Matter of Cadet v. Lamour, 86 A.D.3d 538, 539, 928 N.Y.S.2d 301;Matter of Caravella v. Toale, 78 A.D.3d 828, 911 N.Y.S.2d 162;Matter of McClurkin v. Bailey, 78 A.D.3d 707, 707–708, 911 N.Y.S.2d 99;Matter of Vasquez v. Ortiz, 77 A.D.3d 962, 963, 909 N.Y.S.2d 155;Matter of Zeis v. Slater, 57 A.D.3d 793, 794, 870 N.Y.S.2d 387).
Here, the Family Court's determination that there had been a change of circumstances sufficient to warrant a change of custody based on the mother's interference with the father's visitation rights is supported by a sound and substantial basis in the record ( see Matter of Cadet v. Lamour, 86 A.D.3d at 539, 928 N.Y.S.2d 301;Matter of Caravella v. Toale, 78 A.D.3d at 828, 911 N.Y.S.2d 162;Matter of McClurkin v. Bailey, 78 A.D.3d at 707–708, 911 N.Y.S.2d 99;Matter of Vasquez v. Ortiz, 77 A.D.3d at 963, 909 N.Y.S.2d 155;Matter of Zeis v. Slater, 57 A.D.3d at 794, 870 N.Y.S.2d 387).
The mother's remaining contentions either are without merit or unpreserved for appellate review.