Opinion
2017–07799 Docket Nos. V–6086–15/15A/15B/16C/17D, V–6087–15/15A/15B/15C/17D
12-19-2018
In the Matter of Michele L. DEDRICK, Appellant, v. Derrick CUSSANO, Respondent. (Proceeding No. 1) In the Matter of Derrick Cussano, Respondent, v. Michele L. Dedrick, Appellant. (Proceeding No. 2)
Vasti & Vasti, P.C., Pleasant Valley, N.Y. (Thomas F. Vasti III of counsel), for appellant. Campanaro & Tomkovitch, Hopewell Junction, N.Y. (Patricia L. Campanaro of counsel), attorney for the children.
Vasti & Vasti, P.C., Pleasant Valley, N.Y. (Thomas F. Vasti III of counsel), for appellant.
Campanaro & Tomkovitch, Hopewell Junction, N.Y. (Patricia L. Campanaro of counsel), attorney for the children.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
In related proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Dutchess County (Denise M. Watson, J.), dated June 29, 2017. The order, insofar as appealed from, granted the father's amended cross petition to modify a custody and parental access order and awarded primary residential custody of the parties' two children to the father and, in effect, denied the mother's petition to modify the parental access provisions of that prior order.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
To modify an existing custody order, there must be a showing of a change in circumstances such that modification is necessary to ensure the continued best interests of the children (see Matter of Dezil v. Garlick , 114 A.D.3d 773, 980 N.Y.S.2d 506 ; Matter of Sparacio v. Fitzgerald , 73 A.D.3d 790, 899 N.Y.S.2d 640 ), under the totality of the circumstances (see Eschbach v. Eschbach , 56 N.Y.2d 167, 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). Custody determinations largely depend upon the Family Court's "assessments of the credibility, character, temperament, and sincerity of the parties" ( Matter of Lao v. Gonzales , 130 A.D.3d 624, 625, 13 N.Y.S.3d 211 ; see Matter of Lombardi v. Valenti , 120 A.D.3d 817, 818, 991 N.Y.S.2d 457 ). The court's credibility findings should be accorded great weight, and its custody determinations should not be disturbed unless they lack a sound and substantial basis in the record (see Matter of Lao v. Gonzales , 130 A.D.3d at 625, 13 N.Y.S.3d 211 ; Matter of Lombardi v. Valenti , 120 A.D.3d at 818, 991 N.Y.S.2d 457 ).
Here, the Family Court's determination that there had been a change in circumstances since the issuance of the prior order of custody and parental access has a sound and substantial basis in the record ( Matter of Peralta v. Irrizary , 76 A.D.3d 561, 906 N.Y.S.2d 590 ). Likewise, the court's determination modifying that prior order to award primary residential custody of the children to the father also has a sound and substantial basis in the record (see Eschbach v. Eschbach , 56 N.Y.2d at 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ) and will not be disturbed.Under the circumstances, we agree with the Family Court's determination denying the mother's application for forensic evaluations (see Matter of Rhodie v. Nathan , 67 A.D.3d 687, 888 N.Y.S.2d 159 ; Matter of Johnson v. Williams , 59 A.D.3d 445, 874 N.Y.S.2d 498 ).
Further, we agree with the Family Court's determination denying the mother's application to qualify a particular social worker as an expert witness in this case (see Felicia v. Boro Crescent Corp. , 105 A.D.3d 697, 698, 964 N.Y.S.2d 158 ; de Hernandez v. Lutheran Med. Ctr. , 46 A.D.3d 517, 518, 850 N.Y.S.2d 460 )
The issues raised by the mother concerning the Family Court's temporary custody award are academic, as the temporary award is no longer in effect and there was a full evidentiary trial conducted prior to the issuance of the order appealed from awarding primary residential custody of the children to the father (see Matter of Chamas v. Carino , 119 A.D.3d 564, 565, 987 N.Y.S.2d 871 ; Matter of Ramirez v. Velez , 78 A.D.3d 1062, 1062–1063, 911 N.Y.S.2d 466 ).
MASTRO, J.P., RIVERA, DUFFY and BRATHWAITE NELSON, JJ., concur.