Opinion
2013-07640, Docket No. V-14019-03.
2015-04-01
In the Matter of Trevor R. THOMAS, respondent, v. Simone M. WONG, appellant.
Skelos, J.P., Austin, Miller and Hinds-Radix, JJ., concur.
Rhea G. Friedman, New York, N.Y., for appellant. Karen P. Simmons, Brooklyn, N.Y. (Susan M. Cordaro and Janet Neustaetter of counsel), attorney for the child.
PETER B. SKELOS, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ.
Appeal from an order of the Family Court, Kings County (Terrence J. McElrath, J.), dated June 20, 2013. The order granted the father's petition to modify a prior order of custody of that court so as to award him sole custody of the parties' child.
ORDERED that the order is affirmed, without costs or disbursements.
Modification of an existing custody or visitation order is only warranted upon 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[a]; Matter of Hixenbaugh v. Hixenbaugh, 111 A.D.3d 636, 637, 974 N.Y.S.2d 287; Matter of Quintanilla v. Morales, 110 A.D.3d 1081, 974 N.Y.S.2d 261). The best interests of the child are determined by a review of the totality of the circumstances ( see Matter of Hixenbaugh v. Hixenbaugh, 111 A.D.3d at 637, 974 N.Y.S.2d 287; see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260). In addition, as custody determinations depend to a great extent upon the hearing court's assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties, its findings are accorded deference and will not be disturbed unless they lack a sound and substantial basis in the record ( see Matter of Diaz v. Garcia, 119 A.D.3d 682, 683, 988 N.Y.S.2d 899; Matter of Quintanilla v. Morales, 110 A.D.3d at 1081–1082, 974 N.Y.S.2d 261; Matter of Davis v. Pignataro, 97 A.D.3d 677, 677–678, 948 N.Y.S.2d 378).
Here, the Family Court properly considered the totality of the circumstances, and its determination awarding the father sole custody of the parties' child was supported by a sound and substantial basis in the record. Thus, the court's determination will not be disturbed ( see Matter of Angelina L.C. [Michael C.—Patricia H.–C.], 110 A.D.3d 793, 796–797, 973 N.Y.S.2d 668; Matter of Leo v. Leo, 39 A.D.3d 899, 901, 832 N.Y.S.2d 691; Matter of Sloand v. Sloand, 30 A.D.3d 784, 785–786, 816 N.Y.S.2d 603).
Any error in failing to set forth the facts in the order appealed from does not constitute grounds for reversal or modification, since the record contains a sound and substantial basis for the Family Court's determination and is sufficient for this Court to conduct an independent review of the evidence ( see Matter of Bonet v. Bonet, 121 A.D.3d 978, 995 N.Y.S.2d 122; Matter of Deegan v. Deegan, 35 A.D.3d 736, 824 N.Y.S.2d 917; Matter of Minas v. Shevlin, 254 A.D.2d 420, 421, 678 N.Y.S.2d 672).
The Family Court providently exercised its discretion in denying the mother's mid-hearing application for an updated psychiatric evaluation of the mother, as she failed to demonstrate that an updated evaluation was necessary ( seeCounty Law § 722–c; Matter of Sean S., 79 A.D.3d 757, 758, 911 N.Y.S.2d 916; Matter of Lane v. Lane, 68 A.D.3d 995, 998, 892 N.Y.S.2d 130).