Opinion
06-15-2016
In the Matter of Luis PENA, respondent, v. Matilde M. LOPEZ, appellant.
Larry S. Bachner, Jamaica, N.Y., for appellant. Ralph R. Carrieri, Mineola, N.Y., attorney for the child.
Larry S. Bachner, Jamaica, N.Y., for appellant.
Ralph R. Carrieri, Mineola, N.Y., attorney for the child.
REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, and HECTOR D. LaSALLE, JJ.
Appeals from (1) an order of the Family Court, Queens County (Jane A. McGrady, Ct. Atty. Ref.), dated May 20, 2015, and (2) a “final” order of that court, also dated May 20, 2015. The order, after a hearing, granted sole custody of the parties' child to the father, with visitation to the mother. The “final” order granted the father's petition to modify the custody provisions set forth in a stipulation of settlement dated May 6, 2009, which was incorporated but not merged into the parties' judgment of divorce, in accordance with the first order.
ORDERED that the appeal from the first order dated May 20, 2015, is dismissed, without costs or disbursements, as it was superseded by the “final” order dated May 20, 2015; and it is further,
ORDERED that the “final” order dated May 20, 2015, is affirmed, without costs or disbursements.
The parties entered into a stipulation of settlement in May 2009, which was incorporated but not merged into the judgment of divorce. The stipulation provided that the mother would have sole custody of the subject child, with visitation to the father. In June 2013, the father filed a petition to modify the custody provision of the stipulation of settlement so as to award him sole custody of the subject child. The Family Court granted the father's petition and the mother appeals.
Where modification of an existing custody order is sought, the petitioner must make a showing that there has been a change in circumstances such that modification is necessary to protect the best interests of the child (see Matter of Gelfarb v. Gelfarb, 133 A.D.3d 598, 599, 18 N.Y.S.3d 548 ; Matter of Yearwood v. Yearwood, 90 A.D.3d 771, 773, 935 N.Y.S.2d 578 ). In making such determination, “the court is to consider the totality of the circumstances” (Eschbach v. Eschbach, 56 N.Y.2d 167, 174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; see Matter of Gelfarb v. Gelfarb, 133 A.D.3d at 599, 18 N.Y.S.3d 548 ; Matter of Yearwood v. Yearwood, 90 A.D.3d at 773, 935 N.Y.S.2d 578 ). As custody determinations largely depend upon the Family Court's “assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties” (Matter of McLennan v. Gordon, 122 A.D.3d 742, 742, 996 N.Y.S.2d 339 ; see Matter of Cannella v. Anthony, 127 A.D.3d 745, 746, 4 N.Y.S.3d 533 ; Matter of Kozlowski v. Mangialino, 36 A.D.3d 916, 830 N.Y.S.2d 557 ), the Family Court's credibility findings should be accorded great weight and its custody determination not disturbed unless it lacks a sound and substantial basis in the record (see Eschbach
v. Eschbach, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Cannella v. Anthony, 127 A.D.3d at 746, 4 N.Y.S.3d 533 ; Matter of McLennan v. Gordon, 122 A.D.3d at 742–743, 996 N.Y.S.2d 339 ; Matter of Bennett v. Schultz, 110 A.D.3d 792, 973 N.Y.S.2d 244 ; Matter of Tercjak v. Tercjak, 49 A.D.3d 772, 854 N.Y.S.2d 453 ; Matter of Kozlowski v. Mangialino, 36 A.D.3d 916, 830 N.Y.S.2d 557 ).
Here, contrary to the mother's contention, the Family Court's determination that there had been a change in circumstances requiring a transfer of custody to the father to protect the best interests of the child had a sound and substantial basis in the record and, therefore, will not be disturbed (see Eschbach v. Eschbach, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Gelfarb v. Gelfarb, 133 A.D.3d at 599, 18 N.Y.S.3d 548 ; Matter of Cannella v. Anthony, 127 A.D.3d at 746, 4 N.Y.S.3d 533 ).