Opinion
2022–02361 Docket No. V-1959-21
02-08-2023
In the Matter of Suzette GAGOS, respondent, v. Vinicio L. DELSALTO, appellant.
Kelli M. O'Brien, Goshen, NY, for appellant. Guttridge & Cambareri, P.C., White Plains, NY (A. Albert Buonamici of counsel), for respondent. The Children's Rights Society, Inc. (Donald M. Card, Jr., Shelter Island, NY, of counsel), attorney for the child.
Kelli M. O'Brien, Goshen, NY, for appellant.
Guttridge & Cambareri, P.C., White Plains, NY (A. Albert Buonamici of counsel), for respondent.
The Children's Rights Society, Inc. (Donald M. Card, Jr., Shelter Island, NY, of counsel), attorney for the child.
ANGELA G. IANNACCI, J.P., ROBERT J. MILLER, LINDA CHRISTOPHER, LILLIAN WAN, JJ.
DECISION & ORDER In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Orange County (Lori Currier Woods, J.), dated March 1, 2022. The order, insofar as appealed from, after a hearing, granted the mother's petition to modify the custody provisions of the parties' judgment of divorce so as to award her sole legal and physical custody of the parties' child.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
The parties are the divorced parents of one child, born in 2008. The parties' judgment of divorce dated September 30, 2013, awarded the parties joint legal custody of the child, with the father to have sole physical custody and the mother to have certain parental access. In May 2021, the mother commenced this proceeding to modify the custody provisions of the judgment of divorce so as to award her sole legal and physical custody of the child. After a hearing, the Family Court, inter alia, granted the mother's petition. The father appeals.
"In order to modify an existing custody arrangement, there must be a showing of a subsequent change of circumstances [such] that modification is required to protect the best interests of the child" ( Matter of Fallarino v. Ayala, 41 A.D.3d 714, 714, 838 N.Y.S.2d 176 ; see Majeed v. Majeed, 194 A.D.3d 916, 917, 144 N.Y.S.3d 365 ). "The best interests of the child must be determined by a review of the totality of the circumstances" ( Matter of Walker v. Sterkowicz–Walker, 203 A.D.3d 1165, 1167, 163 N.Y.S.3d 441 ). "Factors to be considered include the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent" ( Matter of Kreischer v. Perry, 83 A.D.3d 841, 841, 924 N.Y.S.2d 794 ; see Pettei v. Pettei, 207 A.D.3d 670, 671, 171 N.Y.S.3d 582 ). "Since custody determinations turn in large part on assessments of ... credibility, character, temperament and sincerity of the parties, the court's determination should not be disturbed unless it lacks a sound and substantial basis in the record" ( Lashlee v. Lashlee, 161 A.D.3d 843, 843, 73 N.Y.S.3d 441 ; see Matter of Langenau v. Hargrove, 198 A.D.3d 650, 651–652, 156 N.Y.S.3d 37 ).
Contrary to the father's contention, the Family Court's determination to modify the custody provisions of the judgment of divorce so as to award the mother sole legal and physical custody of the child has a sound and substantial basis in the record, based upon, inter alia, the deterioration of the child's relationship with the father (see Matter of Tedesco v. Mazzara, 206 A.D.3d 917, 919, 171 N.Y.S.3d 539 ; Cook v. Cook, 142 A.D.3d 530, 533, 36 N.Y.S.3d 222 ). Moreover, the strong preference of the child, who was 13 years old at the time of the hearing, to reside with the mother "should be considered and [was] entitled to great weight, where, as here, the child's age and maturity would make [her] input particularly meaningful" ( Cook v. Cook, 142 A.D.3d at 534, 36 N.Y.S.3d 222 ; see Matter of Coull v. Rottman, 131 A.D.3d 964, 964–965, 15 N.Y.S.3d 834 ).
The father's remaining contentions either are without merit or do not require reversal.
IANNACCI, J.P., MILLER, CHRISTOPHER and WAN, JJ., concur.