Opinion
172 CAF 20-00076
02-11-2021
In the Matter of Jennie M. VERNE, Petitioner-Respondent, v. Adam J. HAMILTON, Respondent-Appellant.
ANTHONY F. BRIGANO, UTICA, FOR RESPONDENT-APPELLANT. KIMBERLY A. WOOD, WATERTOWN, ATTORNEY FOR THE CHILDREN.
ANTHONY F. BRIGANO, UTICA, FOR RESPONDENT-APPELLANT.
KIMBERLY A. WOOD, WATERTOWN, ATTORNEY FOR THE CHILDREN.
PRESENT: WHALEN, P.J., CARNI, NEMOYER, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent father appeals from an order that, inter alia, modified a prior custody and parenting time order by awarding petitioner mother primary physical residence of the subject children and reducing the father's parenting time. As an initial matter, the father "waived [his] contention that the [mother] failed to establish a change in circumstances warranting an inquiry into the best interests of the children inasmuch as the [father] alleged in [his] own cross petition that there had been such a change in circumstances" ( Matter of Biernbaum v. Burdick , 162 A.D.3d 1664, 1665, 80 N.Y.S.3d 761 [4th Dept. 2018] ; see Matter of Rice v. Wightman , 167 A.D.3d 1529, 1530, 90 N.Y.S.3d 774 [4th Dept. 2018], lv denied 33 N.Y.3d 903, 2019 WL 1997567 [2019] ).
Contrary to the father's further contention, we conclude that Family Court did not err in modifying the prior order of custody and parenting time. "Generally a court's determination regarding custody and visitation issues, based on its 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 Warren v. Miller , 132 A.D.3d 1352, 1354, 17 N.Y.S.3d 535 [4th Dept. 2015] [internal quotation marks omitted]), and here the record establishes that the court's determination resulted from a "careful weighing of [the] appropriate factors ..., and ... has a sound and substantial basis in the record" ( Biernbaum , 162 A.D.3d at 1665, 80 N.Y.S.3d 761 [internal quotation marks omitted]). Specifically, the record of the hearing establishes that the prior custody and parenting time order was no longer practical upon one of the children attaining school age, and that it is in the children's best interests to enroll them in the school district in which the mother lived and to provide father with reduced parenting time during the school year and increased parenting time when school was not in session (see generally Matter of Austin v. Smith , 144 A.D.3d 1467, 1468, 42 N.Y.S.3d 422 [3d Dept. 2016] ; Matter of Pecore v. Blodgett , 111 A.D.3d 1405, 1406, 975 N.Y.S.2d 301 [4th Dept. 2013], lv denied 22 N.Y.3d 864, 2014 WL 1243626 [2014] ).