Opinion
419 CAF 17–00918
03-23-2018
In the Matter of Bonfrida F. KAKWAYA, Petitioner–Respondent, v. Joseph TWINAMATSIKO, Respondent–Appellant, and Onondaga County Department of Social Services, Respondent–Respondent.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT–APPELLANT. FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR PETITIONER–RESPONDENT. ARLENE H. BRADSHAW, SYRACUSE, ATTORNEY FOR THE CHILDREN.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT–APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR PETITIONER–RESPONDENT.
ARLENE H. BRADSHAW, SYRACUSE, ATTORNEY FOR THE CHILDREN.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, CARNI, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
Memorandum:Petitioner mother commenced these proceedings seeking primary physical custody of the two subject children, and an order enforcing her visitation rights as set forth in a prior custody order entered on the stipulation of the parties. Respondent father appeals from an order that, inter alia, granted the mother sole legal and physical custody of the subject children and directed that the father have significant visitation. We note at the outset that the father does not "dispute that there was a sufficient change in circumstances since the prior order, and thus the issue before us is whether [Family Court] properly determined that the best interests of the children would be served by a change in" custody ( Matter of Golda v. Radtke , 112 A.D.3d 1378, 1378, 977 N.Y.S.2d 843 [4th Dept. 2013] ).
Contrary to the father's contention, "the deterioration of the parties' relationship and their inability to coparent renders the existing joint custody arrangement unworkable" ( Matter of York v. Zullich , 89 A.D.3d 1447, 1448, 932 N.Y.S.2d 637 [4th Dept. 2011] ; see Matter of Warren v. Miller , 132 A.D.3d 1352, 1353, 17 N.Y.S.3d 535 [4th Dept. 2015] ). We reject the father's further contention that the court erred in granting the mother sole custody of the children. The court's custody determination, which was "based in large part upon the court's firsthand assessment of the character and credibility of the parties, is entitled to great deference" ( Matter of Thayer v. Thayer , 67 A.D.3d 1358, 1359, 888 N.Y.S.2d 693 [4th Dept. 2009] ), and we perceive no basis to disturb the court's determination where, as here, it is supported by a sound and substantial basis in the record (see Matter of Dubuque v. Bremiller , 79 A.D.3d 1743, 1744, 913 N.Y.S.2d 855 [4th Dept. 2010] ).
Finally, the father failed to preserve for our review his contention that the court erred in failing to conduct a Lincoln hearing inasmuch as he did not request such a hearing (see Matter of Greeley v. Tucker , 150 A.D.3d 1646, 1647, 54 N.Y.S.3d 247 [4th Dept. 2017] ; Matter of Thillman v. Mayer , 85 A.D.3d 1624, 1625, 926 N.Y.S.2d 779 [4th Dept. 2011] ). "In any event, based on the child[ren]'s young age[s], we perceive no abuse of discretion in the court's failure to conduct a Lincoln hearing" ( Thillman , 85 A.D.3d at 1625, 926 N.Y.S.2d 779 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.