Opinion
05-17-2017
In the Matter of Shakeida PEREZ, respondent, v. Randy M. BROWN, appellant.
Arza Feldman, Uniondale, NY (Steven Feldman of counsel), for appellant. Catherine Miller, Hauppauge, NY, attorney for the child.
Arza Feldman, Uniondale, NY (Steven Feldman of counsel), for appellant.
Catherine Miller, Hauppauge, NY, attorney for the child.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, SHERI S. ROMAN, and VALERIE BRATHWAITE NELSON, JJ.
Appeal by the father from an order of the Family Court, Suffolk County (Philip Goglas, J.), dated November 13, 2015. The order, insofar as appealed from, after a hearing, granted the mother's petition to modify a prior order of custody of the Family Court, Nassau County (Hope Schwartz Zimmerman, J.), dated March 28, 2011, so as to award her residential custody of the subject child.
ORDERED that the order dated November 13, 2015, is affirmed insofar as appealed from, without costs or disbursements.
The parties are the parents of one child, born in 2006. In an order dated March 28, 2011, the Family Court, Nassau County, upon consent, awarded the parties joint legal custody of the child with residential custody to the father. In August 2014, the mother filed a petition to modify the order so as to award her residential custody. In the order appealed from, the Family Court, Suffolk County, inter alia, granted the petition. The father appeals from that portion of the order.
Modification of an existing custody order is permissible only upon a showing that there has been a change in circumstances such that modification is necessary to ensure the continued best interests of the child (see Matter Vujanic v. Petrovic, 125 A.D.3d 984, 1 N.Y.S.3d 865 ; Matter of Davis v. Pignataro, 97 A.D.3d 677, 948 N.Y.S.2d 378 ; Trinagel v. Boyar, 70 A.D.3d 816, 893 N.Y.S.2d 636 ). "In determining whether such a change exists, the court must determine whether the totality of the circumstances justifies modification" (Matter of Connolly v. Walsh, 126 A.D.3d 691, 693, 5 N.Y.S.3d 241 ; see Matter of Zall v. Theiss, 144 A.D.3d 831, 40 N.Y.S.3d 555 ; Matter of Moore v. Gonzalez, 134 A.D.3d 718, 719, 21 N.Y.S.3d 292 ). "The factors to be considered in making a determination with respect to the best interests of the child 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 Yearwood v. Yearwood, 90 A.D.3d 771, 773–774, 935 N.Y.S.2d 578, quoting Matter of Elliott v. Felder, 69 A.D.3d 623, 623, 892 N.Y.S.2d 491 ; see Eschbach v. Eschbach,
56 N.Y.2d 167, 171–172, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Moran v. Cortez, 85 A.D.3d 795, 796, 925 N.Y.S.2d 539 ; Mohen v. Mohen, 53 A.D.3d 471, 473, 862 N.Y.S.2d 75 ). In addition to these factors, the court must also "consider the stability and continuity afforded by maintaining the present arrangement" (Matter of McDonough v. McDonough, 73 A.D.3d 1067, 1068, 899 N.Y.S.2d 892 [internal quotation marks omitted]; see Matter of DeVita v. DeVita, 143 A.D.3d 981, 982, 39 N.Y.S.3d 527 ; Angelova v. Ruchinsky, 126 A.D.3d 828, 829, 6 N.Y.S.3d 97 ).
Here, contrary to the father's contention, the Family Court's determination that there had been a change in circumstances requiring a transfer of residential custody to the mother in order to ensure the best interests of the child has a sound and substantial basis in the record and, therefore, will not be disturbed (see Eschbach v. Eschbach, 56 N.Y.2d at 173–174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Oyefeso v. Sully, 148 A.D.3d 710, 49 N.Y.S.3d 142 ; Matter of DeVita v. DeVita, 143 A.D.3d at 982–983, 40 N.Y.S.3d 443; Matter of Rosenblatt v. Rosenblatt, 129 A.D.3d 1091, 1092–1093, 12 N.Y.S.3d 230 ).
Accordingly, the Family Court properly granted the mother's petition.