Opinion
778 CAF 19-00287
10-02-2020
In the Matter of Kimberly CHATT, Petitioner–Appellant, v. Justin T. ALLEN, Respondent–Respondent.
PAUL B. WATKINS, FAIRPORT, FOR PETITIONER-APPELLANT. DIMATTEO & ROACH, ATTORNEYS AT LAW, WARSAW (DAVID M. ROACH OF COUNSEL), FOR RESPONDENT-RESPONDENT. ALISON BATES, VICTOR, ATTORNEY FOR THE CHILD.
PAUL B. WATKINS, FAIRPORT, FOR PETITIONER-APPELLANT.
DIMATTEO & ROACH, ATTORNEYS AT LAW, WARSAW (DAVID M. ROACH OF COUNSEL), FOR RESPONDENT-RESPONDENT.
ALISON BATES, VICTOR, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., NEMOYER, CURRAN, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner mother appeals from an order that, inter alia, maintained custody of the subject child with respondent father. We affirm. Initially, we note that the parties do not dispute that the mother demonstrated a sufficient change in circumstances to warrant an inquiry into whether modification of the existing custody arrangement would be in the child's best interests (see Matter of Nordee v. Nordee , 170 A.D.3d 1636, 1636-1637, 94 N.Y.S.3d 900 [4th Dept. 2019], lv denied 33 N.Y.3d 909, 2019 WL 2588142 [2019] ; see generally Matter of DeVore v. O'Harra-Gardner , 177 A.D.3d 1264, 1265, 112 N.Y.S.3d 380 [4th Dept. 2019] ). Nevertheless, the determination of Family Court, following a hearing, that the best interests of the child would be served by an award of sole custody to the father 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 [1982] ), particularly where, as here, the determination is based in part upon the court's " ‘superior ability to evaluate the character and credibility of the witnesses’ " with respect to, inter alia, allegations regarding domestic violence ( Matter of Joyce S. v. Robert W.S. , 142 A.D.3d 1343, 1344, 38 N.Y.S.3d 300 [4th Dept. 2016], lv denied 29 N.Y.3d 906, 2017 WL 1730862 [2017] ). Furthermore, contrary to the mother's contention, the record establishes that the court's determination has a sound and substantial basis in the record (see Matter of Clark v. Kittles , 160 A.D.3d 1420, 1421, 76 N.Y.S.3d 689 [4th Dept. 2018], lv denied 31 N.Y.3d 911, 2018 WL 3117896 [2018] ).