Opinion
1056 CAF 16–01852
10-05-2018
In the Matter of Darcy W. NOBLE, Petitioner–Respondent, v. Mabelene E. GIGON, Respondent–Appellant.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF COUNSEL), FOR RESPONDENT–APPELLANT. ROBERT J. GALLAMORE, OSWEGO, FOR PETITIONER–RESPONDENT. COURTNEY S. RADICK, OSWEGO, ATTORNEY FOR THE CHILDREN.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF COUNSEL), FOR RESPONDENT–APPELLANT.
ROBERT J. GALLAMORE, OSWEGO, FOR PETITIONER–RESPONDENT.
COURTNEY S. RADICK, OSWEGO, ATTORNEY FOR THE CHILDREN.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner father commenced this proceeding pursuant to Family Court Act article 6 seeking, inter alia, to modify a prior custody order by granting him sole custody of the subject children and reducing the visitation afforded to respondent mother. The mother appeals from an order that, inter alia, reduced her visitation and awarded the father primary physical custody of the subject children.
Contrary to the mother's contention, it is well settled that "the continued deterioration of the parties' relationship is a significant change in circumstances justifying a change in custody" and visitation ( Matter of Gaudette v. Gaudette , 262 A.D.2d 804, 805, 691 N.Y.S.2d 681 [3d Dept. 1999], lv denied 94 N.Y.2d 790, 700 N.Y.S.2d 421, 722 N.E.2d 501 [1999] ; see Werner v. Kenney , 142 A.D.3d 1351, 1351, 38 N.Y.S.3d 314 [4th Dept. 2016] ), and we agree with Family Court's determination that such a further deterioration occurred here after the entry of the prior order. Contrary to the mother's next contention, there is a sound and substantial basis in the record to support the court's determination that it was in the children's best interests to award primary physical custody to the father and to reduce the mother's visitation (see Matter of Brewer v. Soles , 111 A.D.3d 1403, 1404, 975 N.Y.S.2d 299 [4th Dept. 2013] ; see generally Matter of Macri v. Brown , 133 A.D.3d 1333, 1334, 20 N.Y.S.3d 804 [4th Dept. 2015] ). In determining whether modification of a custody arrangement is in the children's best interests, a court must consider all the "factors that could impact the best interests of the child[ren], including the existing custody arrangement, the current home environment, the financial status of the parties, the ability of each parent to provide for the child[ren]'s emotional and intellectual development and the wishes of the child[ren]" ( Matter of Marino v. Marino , 90 A.D.3d 1694, 1695, 935 N.Y.S.2d 818 [4th Dept. 2011] ; see generally Eschbach v. Eschbach , 56 N.Y.2d 167, 172–174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ). Furthermore, "a court's determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record" ( Marino , 90 A.D.3d at 1695, 935 N.Y.S.2d 818 [internal quotation marks omitted] ). Here, upon reviewing the relevant factors, we perceive no basis upon which to set aside the court's award of primary physical custody of the children to the father or its reduction in the general award of parenting time to the mother. We have considered the mother's remaining contention and conclude that it does not require a different result.
Finally, we note that the Attorney for the Children did not appeal from the order and thus, to the extent that her brief raises contentions not raised by the mother, those contentions have not been considered (see Matter of Jayden B. [Erica R.] , 91 A.D.3d 1344, 1345, 938 N.Y.S.2d 692 [4th Dept. 2012] ).