Opinion
2012-05-23
In the Matter of Mario TOBAR, respondent, v. Rosemarie VELEZ–MOLINA, appellant.
Helene Bernstein, Brooklyn, N.Y., for appellant. Helene Chowes, New York, N.Y., for respondent.
Helene Bernstein, Brooklyn, N.Y., for appellant. Helene Chowes, New York, N.Y., for respondent.
Karen P. Simmons, Brooklyn, N.Y. (Tammy Linn and Janet Neustaetter of counsel), attorney for the child.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, and LEONARD B. AUSTIN, JJ.
In related proceedings pursuant to Family Court Act articles 6 and 8, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Kings County (Graham, J.), dated February 9, 2011, as, after a hearing, granted that branch of the father's petition which was to modify a final order of custody and visitation of the same court (Grosvenor, J.), dated August 11, 2006, inter alia, awarding the parties joint legal custody, so as to award the father sole legal and physical custody of the children.
ORDERED that the order dated February 9, 2011, is affirmed insofar as appealed from, without costs or disbursements.
The parties have three children together. In a final order of custody and visitation entered on consent in August 2006 (hereinafter the final custody order), the parties were awarded joint legal custody of the children, with residential custody to the mother and visitation to the father. Shortly before the parties entered into the stipulation, the mother moved with the subject children to Amsterdam, New York, while the father continued to reside in Brooklyn.
In 2007, the father filed a violation petition with the Family Court and, upon the mother's failure to appear in court, the Family Court, inter alia, awarded the father temporary custody. Thereafter, the father filed a petition seeking to modify the final custody order based upon a change of circumstances. An attorney was appointed for the children and a hearing was conducted. In the order appealed from, the Family Court, among other things, granted that branch of the father's petition which was to modify the final custody order so as to award him sole physical and legal custody of the children.
“Modification of an existing custody arrangement is permissible only upon a showing that there has been a change in circumstances such that modification is necessary to ensure the best interests of the child. The court must consider the totality of the circumstances” (Matter of Strand–O'Shea v. O'Shea, 32 A.D.3d 398, 398, 819 N.Y.S.2d 109;see Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260;Matter of Nava v. Kinsler, 85 A.D.3d 1186, 1186, 926 N.Y.S.2d 310;Matter of Harris v. Carter, 66 A.D.3d 780, 886 N.Y.S.2d 760). “In this regard, the court should consider whether the alleged changed circumstancesindicate one of the parties is unfit, the nature and quality of the relationships between the child and the parties, and the existence of a prior agreement” (Matter of Fallarino v. Ayala, 41 A.D.3d 714, 715, 838 N.Y.S.2d 176). Since custody determinations turn in large part on assessments of the credibility, character, temperament, and sincerity of the parties, the Family Court's determination should not be disturbed unless it lacks a sound and substantial basis in the record ( see Eschbach v. Eschbach, 56 N.Y.2d at 173–174, 451 N.Y.S.2d 658, 436 N.E.2d 1260;Matter of Paul T. v. Ann–Marie T., 75 A.D.3d 788, 904 N.Y.S.2d 585).
Here, the Family Court's determinations that there had been a change in circumstances since the final custody order and that a transfer of custody to the father would be in the children's best interests, have a sound and substantial basis in the record and, thus, should not be disturbed ( see Matter of Harris v. Carter, 66 A.D.3d 780, 886 N.Y.S.2d 760;Matter of Battista v. Fasano, 41 A.D.3d 712, 713, 838 N.Y.S.2d 178;Matter of Galanos v. Galanos, 28 A.D.3d 554, 555, 816 N.Y.S.2d 90). The evidence adduced at the hearing regarding,inter alia, the subject children's academic and developmental difficulties and the father's better ability to care for and attend to the children's daily needs and academic development, as well as the preference of the children, supports the determination to transfer custody to the father ( see Williams v. Williams, 78 A.D.3d 1256, 911 N.Y.S.2d 209;Matter of Battista v. Fasano, 41 A.D.3d at 713, 838 N.Y.S.2d 178;Matter of Galanos v. Galanos, 28 A.D.3d at 555, 816 N.Y.S.2d 90).