Opinion
674 CAF 17–01216
06-08-2018
In the Matter of Timothy MCCARTHY, Petitioner–Respondent v. Cindy A. KRIEGAR, Respondent–Petitioner–Appellant.
ROBERT A. DINIERI, CLYDE, FOR RESPONDENT–PETITIONER–APPELLANT.
ROBERT A. DINIERI, CLYDE, FOR RESPONDENT–PETITIONER–APPELLANT.
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent-petitioner mother appeals from an order that, inter alia, denied her petition to modify the prior order of custody and directed that the parties continue to share joint legal custody of their children. We affirm.
"It is well established that alteration of an established custody arrangement will be ordered only upon a showing of a change in circumstances [that] reflects a real need for change to ensure the best interest[s] of the child[ren]" ( Matter of Carey v. Windover, 85 A.D.3d 1574, 1574, 925 N.Y.S.2d 360 [4th Dept. 2011], lv denied 17 N.Y.3d 710, 2011 WL 4357160 [2011] [internal quotation marks omitted] ). Contrary to the mother's contention, we conclude that there is a sound and substantial basis in the record for Family Court's determination that the mother failed to establish a change in circumstances (see Matter of Avola v. Horning, 101 A.D.3d 1740, 1740–1741, 957 N.Y.S.2d 787 [4th Dept. 2012] ). Although the record establishes that the parties have difficulty communicating with each other, the mother failed to demonstrate that those communication problems have changed since the prior custody order was entered (see id. at 1741, 957 N.Y.S.2d 787 ). Contrary to the mother's further contention, "a court's determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record" ( Matter of Saunders v. Stull, 133 A.D.3d 1383, 1383, 20 N.Y.S.3d 824 [4th Dept. 2015] [internal quotation marks omitted] ). Here, there is no basis in the record to give less weight to the court's determination on the ground that the trial judge recused himself after issuing the order on appeal.