Opinion
2013-11-13
In the Matter of David CORTEZ, respondent, v. Alida CORTEZ, appellant.
Jessica Sin, Fresh Meadows, N.Y., for appellant. Kenneth M. Tuccillo, Hastings–on–Hudson, N.Y., for respondent.
Jessica Sin, Fresh Meadows, N.Y., for appellant. Kenneth M. Tuccillo, Hastings–on–Hudson, N.Y., for respondent.
Karen P. Simmons, Brooklyn, N.Y. (Susan M. Cordaro and Barbara H. Dildine of counsel), attorney for the child.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Kings County (Katz, J.), dated July 31, 2012, as, after a hearing, granted that branch of the father's petition which was to modify so much of a prior order of the same court (Pearl, J.), dated September 14, 2006, as awarded the mother custody of the parties' son so as to award the father sole custody of the parties' son.
ORDERED that the order is reversed insofar as appealed from, on the facts, without costs or disbursements, that branch of the father's petition which was to modify so much of the order dated September 14, 2006, as awarded the mother custody of the parties' son so as to award him sole custody of the parties' son is denied, and the matter is remitted to the Family Court, Kings County, to establish an appropriate visitation schedule for the father with the parties' son.
To warrant modification of an existing court-sanctioned child custody arrangement, there must be a showing of a change in circumstances, such that the modification is required to protect the best interests of the child ( see Family Ct. Act § 652[a]; Matter of Morillo v. Nunez, 91 A.D.3d 875, 876, 936 N.Y.S.2d 910;White v. Mazzella–White, 84 A.D.3d 1068, 1069, 924 N.Y.S.2d 418;Matter of Chabotte v. Faella, 77 A.D.3d 749, 908 N.Y.S.2d 607). The best interests of the child are determined by a review of the totality of the circumstances ( see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260;Matter of Griffin v. Nikiea Moore–James, 104 A.D.3d 685, 960 N.Y.S.2d 222;Matter of Sidorowicz v. Sidorowicz, 101 A.D.3d 737, 955 N.Y.S.2d 194).
In custody matters, the credibility determinations of the Family Court are entitled to deference, as the Family Court was in the best position to evaluate the credibility of witnesses ( see Matter of Laura C. [ Eduardo C. ], 108 A.D.3d 666, 969 N.Y.S.2d 164;Matter of Pietrafesa v. Pietrafesa, 108 A.D.3d 557, 970 N.Y.S.2d 38). However, the authority of an appellate court is as broad as that of the Family Court ( see Matter of Louise E.S. v. W. Stephen S., 64 N.Y.2d at 947, 488 N.Y.S.2d 637, 477 N.E.2d 1091;Matter of Ellis v. Burke, 108 A.D.3d at 765, 970 N.Y.S.2d 251;Matter of Edwards v. Rothschild, 60 A.D.3d 675, 676, 875 N.Y.S.2d 155), and “[a]n appellate court would be seriously remiss if, simply in deference to the finding of a Trial Judge, it allowed a custody determination to stand where it lack[ed] a sound and substantial basis in the record” (Matter of Gloria S. v. Richard B., 80 A.D.2d 72, 76, 437 N.Y.S.2d 411;see Matter of Iams v. Estate of Iams, 106 A.D.3d 910, 911, 965 N.Y.S.2d 165;Matter of Moran v. Cortez, 85 A.D.3d 795, 797, 925 N.Y.S.2d 539;Matter of Ruggiero v. Noe, 77 A.D.3d 959, 961, 910 N.Y.S.2d 479).
Here, the father failed to establish that a change in custody was in the best interests*792of the parties' son in light of, inter alia, the evidence as to the child's emotional distress during a period of time when he lived with the father, the evidence that the child was in need of certain professional treatment, and the father's failure to consistently obtain such treatment for the child ( see Matter of Robert T.F. v. Rosemary F., 148 A.D.2d 449, 451, 538 N.Y.S.2d 605). Accordingly, the Family Court should have denied that branch of the father's petition which was to modify the existing child custody arrangement so as to award him sole custody of the parties' son.
In light of our determination, we need not address the mother's remaining contention.