Opinion
2013-01315 (Docket No. V-4528-01)
05-20-2015
In the Matter of Lawrence J. WORNER, respondent, v. Susan GAVIN, appellant.
Meth Law Offices, P.C., Chester, N.Y. (Michael D. Meth of counsel), for appellant. Clara H. Lipinsky, Pine Island, N.Y., attorney for the children.
Meth Law Offices, P.C., Chester, N.Y. (Michael D. Meth of counsel), for appellant.
Clara H. Lipinsky, Pine Island, N.Y., attorney for the children.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, SHERI S. ROMAN and HECTOR D. LaSALLE, JJ.
Opinion Appeal from stated portions of an order of the Family Court, Orange County (Debra J. Kiedaisch, J.), dated December 21, 2012. The order, inter alia, after a hearing, granted the father's petition to modify a prior order of that court dated January 14, 2011, so as to award him permanent sole legal and physical custody of the subject children.ORDERED that the order dated December 21, 2012, is affirmed insofar as appealed from, without costs or disbursements.
The parties are the parents of two children, born in 1999 and 2000, respectively. By order dated January 16, 2004, the Family Court awarded the mother sole physical custody of the children. In January 2011, the father commenced a family offense proceeding against the mother on behalf of the children, and while that proceeding was pending, the Family Court issued a temporary order of protection dated January 14, 2011, directing the mother to stay away from the children and awarding temporary sole legal and physical custody of the children to the father. The father then commenced this proceeding seeking to modify the order dated January 14, 2011, so as to award him permanent sole legal and physical custody based on a change in circumstances.
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 (see Family Ct. Act § 652[a] ; Matter of Thomas v. Wong, 127 A.D.3d 769, 7 N.Y.S.3d 220 ; 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 Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; see Matter of Hixenbaugh v. Hixenbaugh, 111 A.D.3d at 637, 974 N.Y.S.2d 287 ). 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 credibility findings are accorded deference, and its custody determinations 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 ). Furthermore, in determining custody, while the express wishes of the children are not controlling, “they are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful” (Matter of O'Connor v. Dyer, 18 A.D.3d 757, 795 N.Y.S.2d 686 ; see Matter of Samuel S. v. Dayawathie R., 63 A.D.3d 746, 747, 880 N.Y.S.2d 685 ; Matter of Manfredo v. Manfredo, 53 A.D.3d 498, 500, 861 N.Y.S.2d 399 ).
Here, there was evidence that the relationship between the mother and the children had deteriorated, that the children wished to reside with the father, and that the father would be more likely than the mother to foster a relationship between the children and the noncustodial parent. Contrary to the mother's contention, the Family Court's determination awarding the father permanent sole legal and physical custody has a sound and substantial basis in the record (see Matter of Cannella v. Anthony, 127 A.D.3d 745, 4 N.Y.S.3d 533 ; Matter of Manfredo v. Manfredo, 53 A.D.3d at 500, 861 N.Y.S.2d 399 ).
Moreover, there is no merit to the mother's contention that the Family Court was biased against her. “The inquiry on appeal is limited to whether the judge's bias, if any, unjustly affected the result to the detriment of the complaining party” (Matter of Davis v. Pignataro, 97 A.D.3d at 678, 948 N.Y.S.2d 378 [internal quotation marks omitted]; see Matter of Hixenbaugh v. Hixenbaugh, 111 A.D.3d at 637, 974 N.Y.S.2d 287 ; Schwartzberg v. Kingsbridge Hgts. Care Ctr., Inc., 28 A.D.3d 465, 466, 813 N.Y.S.2d 191 ; State Div. of Human Rights v. Merchants Mut. Ins. Co., 59 A.D.2d 1054, 1056, 399 N.Y.S.2d 813 ). Here, the record contains no evidence of the alleged bias (see Matter of Davis v. Pignataro, 97 A.D.3d at 678, 948 N.Y.S.2d 378 ).
The mother's remaining contention is without merit.