Opinion
257 CAF 18–00212
03-22-2019
In the Matter of Luckee D. NORDEE, Petitioner–Respondent v. Kilsi C. NORDEE, Respondent-Petitioner–Respondent.
DENIS A. KITCHEN, JR., WILLIAMSVILLE, FOR PETITIONER–RESPONDENT–APPELLANT. CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT–PETITIONER–RESPONDENT. JENNIFER PAULINO, BUFFALO, ATTORNEY FOR THE CHILD.
DENIS A. KITCHEN, JR., WILLIAMSVILLE, FOR PETITIONER–RESPONDENT–APPELLANT.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT–PETITIONER–RESPONDENT.
JENNIFER PAULINO, BUFFALO, ATTORNEY FOR THE CHILD.
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, TROUTMAN, AND WINSLOW,
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this Family Court Act article 6 proceeding, petitioner-respondent father appeals from an order that, inter alia, denied his amended petition seeking modification of a prior joint custody order by awarding him primary residential custody of and increased visitation with the parties' child and granted the cross petition of respondent-petitioner mother insofar as she sought modification of the prior custody order by directing that her address be used as the child's residential address for school purposes. Initially, we note that, inasmuch as both parties sought modification of the prior custody order, neither party "dispute[s] that there was ‘a sufficient change in circumstances demonstrating a real need for a change in order to insure’ the child['s] best interests" ( Matter of Schimmel v. Schimmel , 262 A.D.2d 990, 991, 692 N.Y.S.2d 291 [4th Dept. 1999], lv denied 93 N.Y.2d 817, 697 N.Y.S.2d 565, 719 N.E.2d 926 [1999] ).It is well settled that "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 Bryan K.B. v. Destiny S.B. , 43 A.D.3d 1448, 1449, 844 N.Y.S.2d 535 [4th Dept. 2007] [internal quotation marks omitted]; see Eschbach v. Eschbach , 56 N.Y.2d 167, 173–174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ). Contrary to the father's contentions, we conclude that Family Court properly considered and weighed the appropriate factors in denying the father's amended petition and in designating the mother as the primary residential parent for all purposes, including the use of her address for school purposes (see generally Eschbach , 56 N.Y.2d at 172–173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Fox v. Fox , 177 A.D.2d 209, 210, 582 N.Y.S.2d 863 [4th Dept. 1992] ). We therefore "perceive no basis to disturb the court's determination where, as here, it is supported by a sound and substantial basis in the record" ( Matter of Kakwaya v. Twinamatsiko , 159 A.D.3d 1590, 1591, 72 N.Y.S.3d 739 [4th Dept. 2018], lv denied 31 N.Y.3d 911, 2018 WL 3118124 [2018] ).