Opinion
2013-05-8
In the Matter of Stacy FALCO, respondent, v. Mark DiFORIO, appellant.
Martin & Colin, P.C., White Plains, N.Y. (William Martin of counsel), for appellant. David R. Sachs, White Plains, N.Y., for respondent.
Martin & Colin, P.C., White Plains, N.Y. (William Martin of counsel), for appellant. David R. Sachs, White Plains, N.Y., for respondent.
Gary E. Eisenberg, New City, N.Y., attorney for the child.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, PLUMMER E. LOTT, and SANDRA L. SGROI, JJ.
In a child custody proceeding pursuant to Family Court Act article 6, the father appeals from (1) a decision of the Family Court, Westchester County (Klein, J.), entered October 7, 2011, made after a hearing, and (2) an order of the same court entered November 28, 2011, which, upon the decision, granted the mother's petition to modify a prior order of the same court dated October 22, 2009, so as to award her sole legal and physical custody of the parties' child.
ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision ( see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718); and it is further,
ORDERED that the order is affirmed, without costs or disbursements.
In order to modify an existing child custody arrangement, there must be a showing that there has been a change in circumstances such that modification is required to protect the best interests of the child ( seeFamily Ct. Act § 652; Matter of Abranko v. Vargas, 26 A.D.3d 490, 491, 810 N.Y.S.2d 509). “In determining the best interest of the child, the court must consider the totality of the circumstances” ( Matter of Zindle v. Hernandez, 26 A.D.3d 338, 338, 809 N.Y.S.2d 524;see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260). “The court's determination depends to a great extent upon its assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parents” ( Matter of Palm v. Palm, 15 A.D.3d 405, 405, 789 N.Y.S.2d 524).
Here, the evidence in the record demonstrates that the parties have a contentious relationship and are unable to communicate with each other. As such, there is a sound and substantial basis for the Family Court's determination that joint custody was no longer appropriate ( see Matter of O'Loughlin v. Sweetland, 98 A.D.3d 983, 951 N.Y.S.2d 160;Matter of Pavone v. Bronson, 88 A.D.3d 724, 725, 930 N.Y.S.2d 280;Matter of Gorniok v. Zeledon–Mussio, 82 A.D.3d 767, 768, 918 N.Y.S.2d 516). The record also supports the court's determination that sole legal and physical custody should be with the mother ( see Matter of O'Loughlin v. Sweetland, 98 A.D.3d 983, 951 N.Y.S.2d 160;Matter of Adams v. Perryman, 35 A.D.3d 852, 853, 826 N.Y.S.2d 442). Accordingly, the court properly granted the mother's petition.