Opinion
2014-07-9
In the Matter of David DIAZ, respondent, v. Masiel GARCIA, appellant.
Yasmin Daley Duncan, Brooklyn, N.Y., for appellant. Lance K. Dandridge, Jamaica, N.Y., for respondent.
Yasmin Daley Duncan, Brooklyn, N.Y., for appellant. Lance K. Dandridge, Jamaica, N.Y., for respondent.
Nestor Soto, Astoria, N.Y., attorney for the child.
In a visitation proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Queens County (McGrady, Ct. Atty. Ref.), dated June 24, 2013, which, after a hearing, granted the father's petition to modify the visitation provisions of an order of the same court (Tally, J.), dated May 19, 2011, so as to award him certain unsupervised visitation with the subject child.
ORDERED that the order dated June 24, 2013, is affirmed, without costs or disbursements.
A visitation order may be modified upon a showing of a sufficient change in circumstances since the entry of the prior order such that modification is warranted to further the child's best interests ( seeFamily Ct. Act § 652; Matter of Madden v. Ruskiewicz, 117 A.D.3d 827, 985 N.Y.S.2d 704; Matter of Luo v. Yang, 103 A.D.3d 636, 959 N.Y.S.2d 255;Matter of Awan v. Awan, 75 A.D.3d 597, 598, 906 N.Y.S.2d 70). The paramount concern when making any custody or visitation determination is the best interests of the child, under the totality of the circumstances ( see Matter of Wilson v. McGlinchey, 2 N.Y.3d 375, 380–381, 779 N.Y.S.2d 159, 811 N.E.2d 526;Eschbach v. Eschbach, 56 N.Y.2d 167, 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260;Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 96, 447 N.Y.S.2d 893, 432 N.E.2d 765;Matter of Boggio v. Boggio, 96 A.D.3d 834, 835, 945 N.Y.S.2d 764;Galanti v. Kraus, 85 A.D.3d 723, 724, 924 N.Y.S.2d 848). “The best interests of the child generally lie in being nurtured and guided by both parents” (Matter of Ross v. Morrison, 98 A.D.3d 515, 517, 949 N.Y.S.2d 186;see Matter of Zwillman v. Kull, 90 A.D.3d 774, 775, 934 N.Y.S.2d 333;Matter of Jules v. Corriette, 76 A.D.3d 1016, 1017, 908 N.Y.S.2d 89). Since custody and visitation determinations “necessarily depend[ ] to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded the court's findings. Therefore, its findings should not be set aside unless they lack a sound and substantial basis in the record” (Matter of Elliott v. Felder, 69 A.D.3d 623, 892 N.Y.S.2d 491 [citation omitted] ).
Here, contrary to the mother's contentions, the Family Court's determination has a sound and substantial basis in the record. Thus, the determination will not be disturbed ( see Matter of Holmes v. Holmes, 116 A.D.3d 955, 956, 983 N.Y.S.2d 850). MASTRO, J.P., CHAMBERS, LOTT and ROMAN, JJ., concur.