Opinion
2018–13238 Docket Nos. V–1207–15, V–1208–15, O–1483–18
12-24-2019
In the Matter of Marlon MANSILLA, respondent, v. Amanda SANTIAGO, appellant. (Proceeding No. 1) In the Matter of Amanda Santiago, appellant, v. Marlon Mansilla, respondent. (Proceeding No. 2)
Salihah R. Denman, Harrison, NY, for appellant. Kelli M. O'Brien, Goshen, NY, for respondent. Patrick J. Carle, New City, NY, attorney for the children.
Salihah R. Denman, Harrison, NY, for appellant.
Kelli M. O'Brien, Goshen, NY, for respondent.
Patrick J. Carle, New City, NY, attorney for the children.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER In related proceedings pursuant to Family Court Act articles 6 and 8, the mother appeals from an order of the Family Court, Orange County (Lori Currier Woods, J.), dated October 15, 2018. The order, insofar as appealed from, after a hearing, granted the father's petition to modify a prior order of custody dated May 22, 2017, so as to award him sole legal and physical custody of the parties' two children, and, in effect, denied the mother's family offense petition and dismissed the proceeding.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
" ‘An order of custody or [parental access] may be modified only upon a showing that there has been a subsequent change of circumstances such that modification is required to ensure the best interests of the child’ " ( Matter of Bacchus v. McGregor, 147 A.D.3d 1049, 1050, 48 N.Y.S.3d 683, quoting Matter of C.H. v. F.M., 130 A.D.3d 1028, 1028, 14 N.Y.S.3d 482 ). Contrary to the mother's contention, the father alleged a change of circumstances sufficient to warrant a hearing (cf. Matter of Ross v. Ross, 68 A.D.3d 878, 890 N.Y.S.2d 127 ; Matter of Gurewich v. Gurewich, 58 A.D.3d 628, 872 N.Y.S.2d 141 ).
"Custody determinations largely depend upon the Family Court's ‘assessments of the credibility, character, temperament, and sincerity of the parties’ " ( Matter of Dockery v. Reid–O'Garro, 161 A.D.3d 1147, 1148, 77 N.Y.S.3d 480, quoting Matter of Lao v. Gonzales, 130 A.D.3d 624, 625, 13 N.Y.S.3d 211 ). The Family Court's credibility findings should be accorded great weight, and its determination should not be disturbed unless it lacks a sound and substantial basis in the record (see Matter of Dockery v. Reid–O'Garro, 161 A.D.3d 1147, 77 N.Y.S.3d 480 ). Here, there was a sound and substantial basis for the Family Court's determination that changed circumstances warranted awarding the father sole legal and physical custody of the parties' two children.
In a family offense proceeding, the petitioner has the burden of establishing, by a fair preponderance of the evidence, that the charged conduct was committed as alleged in the petition (see Matter of Bah v. Bah, 112 A.D.3d 921, 978 N.Y.S.2d 301 ). The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and its determinations regarding the credibility of witnesses are entitled to great weight on appeal (see Matter of Nusbaum v. Nusbaum, 59 A.D.3d 725, 874 N.Y.S.2d 378 ). Here, the Family Court properly determined, after a hearing, that the mother failed to establish, by a preponderance of the evidence, that the father committed a family offense (see Family Ct Act § 812[1] ; Matter of Graham v. Rawley, 147 A.D.3d 1053, 46 N.Y.S.3d 917 ). Accordingly, we agree with the court's determination, in effect, denying the family offense petition and dismissing the proceeding.
RIVERA, J.P., CHAMBERS, MILLER and CONNOLLY, JJ., concur.