Opinion
2022-03127 Docket Nos. V-2748-21/21A V-2749-21/21A V-2750-21/21A V-2751-21/21A V-2753-21 V-2754-21 V-2755-21 V-2756-21 V-3085-21 V-3086-21 V-3087-21 V-3088-21
03-22-2023
In the Matter of Chana MORALES, petitioner, v. Franklin DIAZ, respondent. (Proceeding No. 1) In the Matter of Franklin Diaz, respondent v. Chana Morales, appellant. (Proceeding No. 2)
Alex Smith, Middletown, NY, for appellant. Peter W. Green, Middletown, NY, for respondent. Scott Stone, White Plains, NY, attorney for the children.
Alex Smith, Middletown, NY, for appellant.
Peter W. Green, Middletown, NY, for respondent.
Scott Stone, White Plains, NY, attorney for the children.
VALERIE BRATHWAITE NELSON, J.P., CHERYL E. CHAMBERS, DEBORAH A. DOWLING, BARRY E. WARHIT, JJ.
DECISION & ORDER In related proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Orange County (Victoria B. Campbell, J.), entered April 4, 2022. The order, insofar as appealed from, after a hearing, granted that branch of the father's petition which was, in effect, to modify an order of the Family Court, Bronx County (Karen M.C. Cortes, Ct. Atty. Ref.), dated February 15, 2018, so as to award him sole legal and physical custody of the parties' children.
ORDERED that the order entered April 4, 2022, is affirmed insofar as appealed from, without costs or disbursements.
The parties, who were never married, have four children in common. Pursuant to an order dated February 15, 2018 (hereinafter the 2018 order), issued on consent, the mother was awarded sole legal and physical custody of the children, with parental access to the father. In June 2021, the father commenced this proceeding, inter alia, in effect, to modify the 2018 order so as to award him sole legal and physical custody of the children. After a hearing, the Family Court, inter alia, granted that branch of the father's petition which was, in effect, to modify the 2018 order so as to award him sole legal and physical custody of the children. The mother appeals.
A parent seeking to modify an existing custody order must show a change in circumstances such that modification is required to protect the best interests of the children (see Matter of Levy v. Binette, 211 A.D.3d 840, 841, 183 N.Y.S.3d 854 ; Matter of Langenau v. Hargrove, 198 A.D.3d 650, 651, 156 N.Y.S.3d 37 ). "The best interests of the child[ren] are determined by a review of the totality of the circumstances" ( Matter of Langenau v. Hargrove, 198 A.D.3d at 651, 156 N.Y.S.3d 37 ; see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Klein v. Theus, 143 A.D.3d 984, 985, 39 N.Y.S.3d 529 ). "Since the Family Court's determination with respect to custody and parental access depends to a great extent upon its assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parties, its findings are generally accorded great deference and will not be disturbed unless they lack a sound and substantial basis in the record" ( Matter of Langenau v. Hargrove, 198 A.D.3d at 651–652, 156 N.Y.S.3d 37 ; see Matter of Smith v. Francis, 206 A.D.3d 914, 170 N.Y.S.3d 195 ). Here, the Family Court's determination to award the father sole legal and physical custody of the children to ensure the best interests of the children has a sound and substantial basis in the record, and thus, will not be disturbed.
The mother's contention that the court should have awarded the parties joint custody of the children was not raised in the Family Court, and, in any event, joint custody was not warranted (see Matter of Shields v. Shields, 192 A.D.3d 691, 139 N.Y.S.3d 853 ). To the extent that the mother raises issues regarding an order awarding the father temporary custody, those issues are academic as that order was superseded by the order appealed from and, therefore, is no longer of any effect (see Matter of Brown v. Elfaiz, 191 A.D.3d 871, 141 N.Y.S.3d 128 ; Matter of Saylor v. Bukowski, 170 A.D.3d 862, 96 N.Y.S.3d 119 ). Any alleged defect in the temporary order does not render defective the order appealed from, which was based on evidence upon a full and fair hearing (see Matter of Saylor v. Bukowski, 170 A.D.3d 862, 96 N.Y.S.3d 119 ; Matter of Wagner v. Stevens, 143 A.D.3d 903, 39 N.Y.S.3d 236 ).
We note that the portions of the brief of the attorney for the children which refer to matter dehors the record have not been considered in the determination of the appeal (see Matter of Rocioppi v. Eliseo, 193 A.D.3d 1055, 145 N.Y.S.3d 608 ; Matter of Swinson v. Brewington, 84 A.D.3d 1251, 925 N.Y.S.2d 96 ).
BRATHWAITE NELSON, J.P., CHAMBERS, DOWLING and WARHIT, JJ., concur.