Pinero v. Patrick

176 A.D.3d 1223

109 N.Y.S.3d 679 (Mem)

In the Matter of Carlos PINERO, respondent,

v.Kimberly PATRICK, appellant.

2018–10353

Docket Nos. V–3148–15/18A, O–1434–18

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

Submitted - October 4, 2019

October 30, 2019

Randy I. Siper, Montgomery, NY, for appellant.

Richard L. Herzfeld, New York, NY, for respondent.

Karen M. Jansen, White Plains, NY, attorney for the child.

LEONARD B. AUSTIN, J.P., COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Orange County (Victoria B. Campbell, J.), dated August 22, 2018. The order, insofar as appealed from, after a hearing, granted the father's petition to modify a prior order so as to award him sole legal and physical custody of the parties' child.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The parties, who were not married, have one child together, born in 2011. A prior order of the Family Court provided that the mother would have physical custody of the child, while the parties shared joint legal custody. In April 2018, the father filed the instant petition, seeking to modify the prior order so as to award him sole legal and physical custody of the child. After a hearing on the petition, the court found that the mother's boyfriend had physically abused the child, and that the mother knew or should have known about the abuse, but did not protect the child. In an order dated August 22, 2018, the court, inter alia, granted the father's petition and awarded him sole legal and physical custody of the child, with parental access to the mother. The mother appeals.

A party seeking modification of an existing custody order must make a showing "that there has been a subsequent change of circumstances and modification is required" ( Family Ct Act § 652[b][ii] ). 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 Domestic Relations Law § 70[a] ; Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95, 447 N.Y.S.2d 893, 432 N.E.2d 765 ; Matter of Olivieri v. Olivieri, 170 A.D.3d 849, 850, 96 N.Y.S.3d 126 ). Since any determination related to custody depends 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 accorded great respect and will not be disturbed unless they lack a sound and substantial basis in the record (see Matter of Fitzgerald v. Fitzgerald, 172 A.D.3d 713, 714, 97 N.Y.S.3d 499 ; Matter of Wright v. Perry, 169 A.D.3d 910, 912, 95 N.Y.S.3d 108 ; Matter of Cabano v. Petrella, 169 A.D.3d 901, 902, 94 N.Y.S.3d 376 ). Here, the Family Court's findings that there was a change in circumstances and that, under the totality of the circumstances, awarding the father sole legal and physical custody of the child was in the child's best interests have a sound and substantial basis in the record and will not be disturbed.

The mother's contention that the Family Court erred in...