| Matter of Tercjak v Tercjak |
| 2008 NY Slip Op 02607 [49 AD3d 772] |
| March 18, 2008 |
| Appellate Division, Second Department |
| In the Matter of Andrzej Tercjak, Respondent, v JadwigaTercjak, Appellant. |
—[*1] Alomar & Associates, P.C., Ridgewood, N.Y. (Karina E. Alomar of counsel), for respondent. Lewis S. Calderon, Jamaica, N.Y., Law Guardian.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appealsfrom so much of an order of the Family Court, Queens County (Rood, R.), dated January 23,2007, as granted the father's motion for a change in custody of the parties' two children.
Ordered that the order is affirmed insofar as appealed from, with costs.
An agreement between parents concerning custody will not be set aside unless there is asufficient change in circumstances since the time of the agreement and unless the modification ofthe custody agreement is in the best interests of the child (see Pambianchi v Goldberg, 35 AD3d 688, 689 [2006]). As acustody determination depends to a great extent upon an assessment of the character andcredibility of the parties and witnesses, the findings of the Family Court will not be disturbedunless they lack a sound and substantial basis in the record (see Eschbach v Eschbach, 56NY2d 167, 174 [1982]; Matter ofHoneywell v Honeywell, 39 AD3d 857, 858 [2007]; Kuncman v Kuncman, 188AD2d 517, 518 [1992]). Here, there is a sound and substantial basis in the record for the FamilyCourt's award of sole physical and legal custody to the father (see Eschbach v Eschbach,56 NY2d 167, 172 [1982]; Vinciguerra v Vinciguerra, 294 AD2d 565, 566 [2002]).
Although the Family Court improvidently exercised its discretion in admitting into evidence[*2]the report of the neutral forensic psychologist, since the reportwas not submitted under oath (see 22 NYCRR 202.16 [g] [2]) and relied on informationother than that upon which an expert may properly base an opinion (see Matter of D'Esposito v Kepler, 14AD3d 509 [2005]), the error in admitting the report was harmless. There is a sound andsubstantial basis in the record for the Family Court's determination without consideration of theimproperly admitted report (see Matterof D'Esposito v Kepler, 14 AD3d 509 [2005]).
The mother's remaining contentions are without merit. Lifson, J.P., Ritter, Florio and Carni,JJ., concur.