Opinion
2021–06499 Docket Nos. V–1945–09/17E, V–1947–09/17E, V–13227–10/17E, V–2282–10/17E
12-14-2022
In the Matter of Egbert N. LEVY, respondent, v. Myriam BINETTE, appellant.
Arza Rayches Feldman, Manhasset, NY, for appellant. Gail Jacobs, Great Neck, NY, for respondent. Marjorie G. Adler, Garden City, NY, attorney for the children.
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father's petition was pending, and so much of his petition as sought sole physical and legal custody of that child was withdrawn.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 father sole physical and legal custody of the children has a sound and substantial basis in the record and will not be disturbed.
The mother's contention that the Family Court erred by failing to order a forensic evaluation is unpreserved for appellate review and, in any event, without merit as the record does not indicate that a forensic evaluation was necessary to enable the court to reach its determination (see Matter of Garrick v. Simon, 197 A.D.3d 1316, 1316–1317, 152 N.Y.S.3d 326 ; Matter of Quinones v. Quinones, 139 A.D.3d 1072, 1074, 32 N.Y.S.3d 607 ). The mother's contentions concerning an order of filiation rendered by the Family Court in a separate proceeding are not properly before this Court (see CPLR 5515 ; Matter of Selena S. [Edward J.B.], 106 A.D.3d 1017, 1017, 965 N.Y.S.2d 358 ; Matter of Brandon M. [Luis M.], 94 A.D.3d 520, 520, 942 N.Y.S.2d 79 ).
IANNACCI, J.P., CHAMBERS, WOOTEN and VOUTSINAS, JJ., concur.