Opinion
2013-10-30
In the Matter of Wilfredo QUINTANILLA, respondent, v. Sandra MORALES, appellant.
Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg and Argun M. Ulgen of counsel), for appellant. Judith Ellen Stone, Merrick, N.Y., for respondent.
Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg and Argun M. Ulgen of counsel), for appellant. Judith Ellen Stone, Merrick, N.Y., for respondent.
Robert C. Mangi, Westbury, N.Y., attorney for the child.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Nassau County (Eisman, J.), dated March 28, 2012, which, after a hearing, in effect, granted the father's petition to modify a prior order of custody of the same court dated June 9, 2006, entered upon the consent of the parties, so as to award him sole legal and physical custody of the subject child.
ORDERED that the order is affirmed, without costs or disbursements.
“Modification of an existing custody arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child” (*262Matter of Tori v. Tori, 103 A.D.3d 654, 655, 958 N.Y.S.2d 510;see Matter of Ross v. Ross, 96 A.D.3d 856, 857, 946 N.Y.S.2d 598;Matter of Pignataro v. Davis, 8 A.D.3d 487, 488, 778 N.Y.S.2d 528). The best interests of the child must be determined by a review of the totality of the circumstances ( see Eschbach v. Eschbach, 56 N.Y.2d 167, 171–172, 451 N.Y.S.2d 658, 436 N.E.2d 1260;Matter of O'Loughlin v. Sweetland, 98 A.D.3d 983, 984, 951 N.Y.S.2d 160). “Since weighing the factors relevant to any custody determination requires an evaluation of the credibility and sincerity of the parties involved, the hearing court's findings are accorded deference, and will not be disturbed unless they lack a sound and substantial basis in the record” (Matter of Jackson v. Coleman, 94 A.D.3d 762, 763, 941 N.Y.S.2d 273;see Matter of Buxenbaum v. Fulmer, 82 A.D.3d 1223, 1224, 919 N.Y.S.2d 389).
Here, contrary to the mother's contention, the Family Court properly considered the totality of the circumstances, and its determination that there had been a sufficient change in circumstances requiring a change in custody to protect the best interests of the subject child is supported by a sound and substantial basis in the record. Accordingly, the Family Court's determination will not be disturbed ( see Matter of Flores v. Mark, 107 A.D.3d 796, 797, 967 N.Y.S.2d 398,lv. denied21 N.Y.3d 865, 2013 N.Y. Slip Op. 84594, 2013 WL 4791378 [2013];Matter of Lawlor v. Eder, 106 A.D.3d 739, 740, 966 N.Y.S.2d 92;Matter of Pappas v. Kells, 77 A.D.3d 952, 953–954, 909 N.Y.S.2d 157).
The mother's remaining contentions are without merit.
Since the father did not appeal, his contention that the Family Court's award of visitation to the mother should be modified is not properly before this Court ( see Matter of Wiebke v. Wiebke, 77 A.D.3d 964, 965, 909 N.Y.S.2d 395).