Levy v. Binette

211 A.D.3d 840

183 N.Y.S.3d 854 (Mem)

In the Matter of Egbert N. LEVY, respondent,

v.Myriam BINETTE, appellant.

2021–06499

Docket Nos. V–1945–09/17E, V–1947–09/17E, V–13227–10/17E, V–2282–10/17E

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

Submitted—November 10, 2022

December 14, 2022

Arza Rayches Feldman, Manhasset, NY, for appellant.

Gail Jacobs, Great Neck, NY, for respondent.

Marjorie G. Adler, Garden City, NY, attorney for the children.

ANGELA G. IANNACCI, J.P., CHERYL E. CHAMBERS, PAUL WOOTEN, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Nassau County (Ellen R. Greenberg, J.), dated August 5, 2021. The order, after a hearing, granted the father's petition to modify an order of the same court (Merik R. Aaron, J.) dated August 16, 2012, made on the consent of the parties, so as to award him sole physical and legal custody of the subject children, with parental access to the mother.

ORDERED that the order dated August 5, 2021, is affirmed, without costs or disbursements.

The mother and the father have five children in common. Pursuant to an order dated August 16, 2012, made on consent of the parties, the mother and the father were awarded joint legal custody of the children, the mother was awarded sole physical custody, and the father was awarded certain parental access. In November 2017, the father commenced this proceeding to modify the order dated August 16, 2012, so as to award him sole physical and legal custody of the children. The parties’ oldest child reached the age of majority while the father's petition was pending, and so much of his petition as sought sole physical and legal custody of that child was withdrawn. In an order dated August 5, 2021, the Family Court, after a hearing, granted the father's petition, awarded the father sole physical and legal custody of the four youngest children, and awarded the mother certain parental access. The mother appeals.

"In order to modify an existing custody or parental access arrangement, there must be a showing of a change of circumstances such that modification is required to protect the best interests of the child" ( Matter of Felgueiras v. Cabral, 204 A.D.3d 790, 791, 166 N.Y.S.3d 665 ; see Matter of Schellinger v. Dunn, 195 A.D.3d 1034, 1035, 146 N.Y.S.3d 809 ). The court's paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Olea v. Diaz, 194 A.D.3d 721, 722, 143 N.Y.S.3d 583 ). "Inasmuch as custody determinations depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded to the hearing court's findings in this regard, and [t]he court's findings will not be disturbed unless they lack a sound and substantial basis in the record" ( Matter of Tedesco v. Mazzara, 206 A.D.3d 917, 919, 171 N.Y.S.3d 539 [internal quotation marks omitted]; see Matter of Burke v. Squires, 202 A.D.3d 784, 785, 162 N.Y.S.3d 434 ).

Here, contrary to the mother's contention, the Family Court's determination to award the...