Opinion
2013-05-3
In the Matter of David BONNELL, Petitioner–Respondent, v. Kimberly J. RODGERS, Respondent–Appellant.
Charles J. Greenberg, Amherst, for Respondent–Appellant. Kevin M. Reedy, Buffalo, for Petitioner–Respondent.
Charles J. Greenberg, Amherst, for Respondent–Appellant.Kevin M. Reedy, Buffalo, for Petitioner–Respondent.
Peter P. Vasilion, Attorney for the Child, Williamsville, for Jordan D.R.–B.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.
MEMORANDUM:
Respondent mother appeals from an order that, inter alia, granted in part the amended petition by awarding petitioner father primary physical custody of the parties' child and visitation to the mother. The mother contends that Family Court abused its discretion in denying her motion to change venue from Erie County to Chautauqua County. We reject that contention. At the time the father commenced this proceeding in Erie County, he and the child resided in that jurisdiction. The mother contends that a change of venue was required for the convenience of material witnesses, but in support of her motion she failed to identify a single witness who would be inconvenienced by proceeding in Erie County. We therefore conclude that the mother failed to demonstrate “good cause” for transferring this proceeding to Chautauqua County (Family Ct. Act § 174; see Rochester Drug Coop., Inc. v. Marcott Pharmacy N. Corp., 15 A.D.3d 899, 899, 789 N.Y.S.2d 779;cf. Seguin v. Landfried, 96 A.D.3d 1433, 1433, 945 N.Y.S.2d 902;Matter of Arcuri v. Osuna, 41 A.D.3d 841, 841–842, 840 N.Y.S.2d 81).
Contrary to the mother's further contention, this proceeding involves an initial determination with respect to custody of the child. Therefore, “ ‘[a]lthough the parties' informal [custody] arrangement is a factor to be considered, [the father] is not required to prove a substantial change in circumstances in order to warrant a modification thereof’ ” ( Matter of Thillman v. Mayer, 85 A.D.3d 1624, 1625, 926 N.Y.S.2d 779;see Matter of Bruce BB. v. Debra CC., 307 A.D.2d 408, 409, 761 N.Y.S.2d 733). We further conclude that, contrary to the mother's contention, the court properly determined that it was in the best interests of the child that the parties share joint custody of the child with primary physical custody with the father. The court's custody determination following a hearing is entitled to great deference ( see Eschbach v. Eschbach, 56 N.Y.2d 167, 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260), “particularly in view of the hearing court's superior ability to evaluate the character and credibility of the witnesses” ( Thillman, 85 A.D.3d at 1625, 926 N.Y.S.2d 779). Here, the court's written decision establishes that the court engaged in a “ ‘careful weighing of [the] appropriate factors' ” ( Matter of Triplett v. Scott, 94 A.D.3d 1421, 1422, 942 N.Y.S.2d 303), and the court's determination has a sound and substantial basis in the record ( see Betro v. Carbone, 5 A.D.3d 1110, 1110, 773 N.Y.S.2d 319;Matter of Thayer v. Ennis, 292 A.D.2d 824, 825, 739 N.Y.S.2d 321).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.