Bartholomew v. Marano

174 A.D.3d 893

107 N.Y.S.3d 337

In the Matter of Natasha Soo–Hon BARTHOLOMEW, Respondent,

v.Anthony MARANO, Appellant.

2018-05314

Index No. V-14737-15/16F

Supreme Court, Appellate Division, Second Department, New York.

Argued—June 14, 2019

July 31, 2019

Friedman & Friedman, PLLC, Garden City, N.Y. (Sari M. Friedman of counsel), for appellant.

Law Offices of Rachel A. Camillery, P.C., West Islip, NY, for respondent.

Laurette D. Mulry, Central Islip, N.Y. (John B. Belmonte of counsel), attorney for the child.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (Philip Goglas, J.), dated March 5, 2018. The order, after a hearing, granted the mother's petition to modify a prior order of custody and visitation issued by the Court of Common Pleas, Juvenile Division, Lake County, in the State of Ohio, and dismissed the father's petition to modify the same order.

ORDERED that the order dated March 5, 2018, is affirmed, with costs.

The parties, who were never married, are the parents of one child, who was born in 2006. In an order of custody and visitation issued by the Court of Common Pleas, Juvenile Division, Lake County, in the State of Ohio, in 2014, the parties agreed to the following: "Mother shall be designated primary legal custodian and residential parent for school purposes. Father shall be designated legal and residential parent when the minor child is with him and shall have access to all medical and education records relating to the minor child."

In August 2015, the father filed a petition to modify the custody provisions of the prior order so as to award him sole legal and physical custody. Subsequent thereto, the mother filed a petition for the same relief as to her. In an order dated March 5, 2018, the Family Court dismissed the father's petition, and granted the mother's petition. The father appeals.

" ‘A court may modify an order awarding custody and visitation upon a showing that there has been a subsequent change [in] circumstances and that modification is in the best interests of the child’ " ( Matter of Mack v. Kass, 115 A.D.3d 748, 748–749, 981 N.Y.S.2d 593, quoting Matter of Sinnott–Turner v. Kolba, 60 A.D.3d 774, 775, 875 N.Y.S.2d 512 ). The parties do not dispute that there was a change in circumstances subsequent to the issuance of the Ohio court order.

"The best interests of the child are determined by an examination of the totality of the circumstances" ( Matter of Dokmeci v. Herbert, 167 A.D.3d 877, 878, 90 N.Y.S.3d 258 ; see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). "The factors to be considered in determining the child's best interests include the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the length of time the present custody arrangement has been in effect" ( Matter of Al–Dalali v. Rivera, 171 A.D.3d 729, 731, 97 N.Y.S.3d 719 ; see Matter of Scheiner v. Henig, 155 A.D.3d 874, 875, 63 N.Y.S.3d 686 ; Matter of Bixler v. Vitrano, 155 A.D.3d 718, 719, 63 N.Y.S.3d 511 ). "Since weighing the factors relevant to 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...