Opinion
2018-11713 Index Nos. V-4399-15/17B, V-4399-15/18C
10-16-2019
In the Matter of Kira PEDICINI, appellant, v. Eric HULL, respondent.
Paul N. Weber, Cornwall, NY, for appellant. Geoffrey E. Chanin, Goshen, NY, for respondent. Donna M. Genovese, White Plains, NY, attorney for the child.
Paul N. Weber, Cornwall, NY, for appellant.
Geoffrey E. Chanin, Goshen, NY, for respondent.
Donna M. Genovese, White Plains, NY, attorney for the child.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the order entered September 20, 2018, is affirmed insofar as appealed from, without costs or disbursements.
The mother and the father are the parents of one child born in 2014. In an order dated January 3, 2017, entered on consent, the parties were awarded joint custody of the child, with primary residential custody and final decision-making authority awarded to the father. The order further provided, inter alia, that the mother was to have such parental access as the parties mutually agreed, provided that the mother's current husband and his mother were not to be in the presence of the child at any time.
The mother filed a petition dated October 23, 2017, to modify the order dated January 3, 2017, so as to allow her husband to be present during her parental access with the child. The Family Court held a hearing on the mother's petition on August 21, 2018, and conducted an in camera interview with the child on September 6, 2018. In an order entered September 20, 2018, the court, inter alia, in effect, denied the mother's petition, and the mother appeals.
A party seeking to modify an existing custody and parental access order must show a "change in circumstances such that modification is required to protect the best interests of the child" ( Matter of Davis v. Pignataro, 97 A.D.3d 677, 677, 948 N.Y.S.2d 378 [internal quotation marks omitted]; see Matter of LaChere v. Maliszweski, 157 A.D.3d 696, 697, 68 N.Y.S.3d 503 ). The best interests of the child must be determined by a review of the totality of the circumstances (see Matter of Jackson v. Wylie–Tunstall, 159 A.D.3d 821, 822, 71 N.Y.S.3d 629 ; Matter of LaChere v. Maliszweski, 157 A.D.3d at 697, 68 N.Y.S.3d 503 ).
Where, as here, the Family Court has conducted an evidentiary hearing on the issue of parental access, its findings are accorded "great weight" ( Matter of Lew v. Lew, 152 A.D.3d 520, 521, 58 N.Y.S.3d 145 ; see Matter of Felty v. Felty, 108 A.D.3d 705, 707, 969 N.Y.S.2d 557 ). "Since [parental access] determinations necessarily depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded to the Family Court's findings, which should not be set aside unless they lack a sound and substantial basis in the record" ( Matter of Jackson v. Wylie–Tunstall, 159 A.D.3d at 822, 71 N.Y.S.3d 629 ; see Matter of Bixler v. Vitrano, 155 A.D.3d 718, 720, 63 N.Y.S.3d 511 ).
Here, the Family Court's determination that it was not in the best interests of the child to modify the order dated January 3, 2017, has a sound and substantial basis in the record, and therefore, will not be disturbed (see Matter of Fulmer v. Buxenbaum, 109 A.D.3d 822, 823, 971 N.Y.S.2d 61 ; Matter of Grusz v. Simonetti, 91 A.D.3d 645, 646, 935 N.Y.S.2d 904 ).
MASTRO, J.P., LEVENTHAL, MILLER and CHRISTOPHER, JJ., concur.