| Matter of Conforti v Conforti |
| 2007 NY Slip Op 10529 [46 AD3d 877] |
| December 26, 2007 |
| Appellate Division, Second Department |
| In the Matter of James G. Conforti, Respondent, v NancyL. Conforti, Appellant. |
—[*1] The Sallah Law Firm, P.C., Holtsville, N.Y. (Dean J. Sallah of counsel), for respondent. Robert C. Mitchell, Riverhead, N.Y. (Amy King of counsel), Law Guardian.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals, aslimited by her brief, from so much of an order of the Family Court, Suffolk County (SnellenburgII, J.H.O.), entered March 16, 2007, as, after a hearing, granted the father's petition for solecustody of the subject children and, in effect, imposed conditions on her future ability to petitionfor a change of custody.
Ordered that the order is modified, on the law, by deleting the sixth decretal paragraphthereof, in effect, imposing conditions on the mother's future ability to petition for a change ofcustody; as so modified, the order is affirmed insofar as appealed from, without costs ordisbursements.
"[W]here parents enter into an agreement concerning custody, 'it will not be set aside unlessthere is a sufficient change in circumstances since the time of the stipulation and unless themodification of the custody agreement is in the best interests of the [child]' " (Pambianchi v Goldberg, 35 AD3d688, 689 [2006], quoting Smoczkiewicz v Smoczkiewicz, 2 AD3d 705, 706 [2003]). Since[*2]custody determinations depend to a great extent upon anassessment of the character and credibility of the parties and witnesses, the findings of the FamilyCourt will not be disturbed unless they lack a sound and substantial basis in the record (seeEschbach v Eschbach, 56 NY2d 167, 174 [1982]; Matter of Honeywell v Honeywell, 39 AD3d 857, 858 [2007];Kuncman v Kuncman, 188 AD2d 517, 518 [1992]).
The evidence presented at the hearing amply supports the Family Court's determination thatawarding sole physical and legal custody of the subject children to the father is in their bestinterests. Since the parties' divorce, there had been a change of circumstances due to the mother'sserious medical problems, which were aggravated by her excessive use of alcohol, and herinability to properly supervise and financially support the children. In contrast, the fatherfurnished a stable home environment and could better provide for the children's emotional andfinancial stability (see Eschbach v Eschbach, 56 NY2d 167, 172 [1982]; Vinciguerrav Vinciguerra, 294 AD2d 565, 566 [2002]). Moreover, the mother acted inconsistently withthe best interests of the children by constantly making negative remarks about the father in thechildren's presence and not informing him of her periods of hospitalization or the children'swhereabouts during such times (seeMatter of Lichtenfeld v Lichtenfeld, 41 AD3d 849, 850 [2007]; Barbato v Barbato,264 AD2d 792, 793 [1999]).
However, it was improper for the Family Court to impose conditions the mother must fulfillin order to justify a future petition for a change of custody (see Matter of Grassi v Grassi, 28 AD3d 482, 483 [2006]; Matterof Alex LL. v Albany County Dept. of Social Servs., 270 AD2d 523, 527 [2000]; cf.Matter of Notley v Schmeid, 220 AD2d 509, 511 [1995]). Crane, J.P., Rivera, Florio andBalkin, JJ., concur.