| Matter of Eck v Eck |
| 2008 NY Slip Op 10075 [57 AD3d 1243] |
| December 24, 2008 |
| Appellate Division, Third Department |
| In the Matter of Leslie K. Eck, Appellant, v Kenneth R. Eck Jr.,Respondent. (And Another Related Proceeding.) |
—[*1] Joseph A. Ermeti, Sydney, for respondent. Jehed Diamond, Law Guardian, Delhi.
Cardona, P.J. Appeals from (1) an order of the Family Court of Delaware County (Burns, J.),entered October 5, 2006, which dismissed petitioner's application, in a proceeding pursuant to FamilyCt Act article 6, to modify a prior order of custody, and (2) from an order of said court, enteredOctober 11, 2006, which dismissed petitioner's application, in a proceeding pursuant to Family Ct Actarticle 8, for orders of protection.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of a son(born in 1998) and they shared joint custody upon their divorce in 2001. In June 2005, Family Court,finding that the mother's actions of repeatedly filing unsubstantiated child protective services reportsagainst the father unnecessarily subjected the child to intrusive investigations by law enforcement andchild protective workers, awarded sole legal and physical custody to the father, with liberal visitation tothe mother, which decision was affirmed by this Court (Matter of Eck v Eck, 33 AD3d 1082 [2006]).
Shortly after receiving Family Court's order, the mother commenced the instant [*2]modification proceeding seeking sole custody alleging, among otherthings, that the child sustained numerous unexplained bruises while in the father's care. Following afact-finding hearing, Family Court denied the mother's request for modification of custody anddismissed the petition. In addition, upon finding that the mother's conduct continued to be detrimental tothe child's well-being, the court, among other things, limited the mother's visitation to Wednesdays fromafter school until 6:00 p.m. and alternate weekends until she obtained an independent mental healthevaluation and followed the recommended course of treatment. The mother now appeals.[FN*]
The primary consideration in any custody matter is the best interests of the child (see Eschbachv Eschbach, 56 NY2d 167, 171 [1982]) and an existing custody arrangement will be modifiedonly upon "a party demonstrating a change in circumstances which reflects a definite need formodification to ensure the best interests of the [child]" (Matter of Colwell v Parks, 44 AD3d 1134, 1135 [2007] [internalquotation marks and citations omitted]; Matter of De Hamel v Porto, 22 AD3d 893, 894 [2005]). Indetermining whether a custody modification is warranted, a court must consider numerous factors, suchas the quality of each parents' home environments, the length of time the present custody arrangementhas been in place, and each parent's past performance, relative fitness and ability to provide for thechild's intellectual and emotional development (see Matter of Reichenberger v Skalski, 24 AD3d 1101, 1102 [2005];Matter of De Hamel v Porto, 22 AD3d at 894). Although this Court's authority in custodymatters is as broad as that entrusted to Family Court, Family Court's findings and credibilitydeterminations are accorded great deference and will not be disturbed on appeal absent a sound andsubstantial basis in the record (see Matter ofAnson v Anson, 20 AD3d 603, 604 [2005], lv denied 5 NY3d 711 [2005]).
We are unpersuaded by the mother's contention that Family Court erred in denying her request fora modification of custody. The record demonstrates that the mother continued her pattern of makingnumerous unfounded neglect and abuse reports against the father to Child Protective Services duringthe short time since the entry of the prior custody order. In fact, at least eight reports were made, eitherby the mother or by the child's doctor at the mother's behest, since the date of the prior custody order.In an effort to document these allegations of abuse, the record establishes that the mother photographedbruises on various parts of the child's body and repeatedly had him examined by the doctor, includingan examination for sexual abuse. As a result of these numerous reports, the child and the fathercontinued to be subjected to intrusive investigations in six separate counties. Notably, only one reportwas indicated, which the record demonstrates was due primarily to the father's initial lack ofcooperation. Furthermore, the father testified that the child is increasingly upset over being subjected tosuch investigations.
In view of the foregoing, the record amply supports Family Court's finding that the mother remainsunaware that her conduct is negatively impacting the child's emotional well-being. Under thecircumstances, and giving deference to Family Court's factual determinations, a sound and substantialbasis exists in the record to support the court's decision (see Matter of [*3]Sanders v Slater, 53 AD3d716, 717 [2008]; Matter of De Hamel v Porto, 22 AD3d at 894).
Carpinello, Lahtinen, Kane and Malone Jr., JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote *: Having failed to advance anyarguments in connection with the appeal from the order entered October 11, 2006 which dismissed afamily offense petition that she filed May 2, 2006, we deem it abandoned (see Matter of Schermerhorn v Breen, 8AD3d 709, 710 n [2004]).