| Matter of Gilmartin v Abbas |
| 2009 NY Slip Op 02598 [60 AD3d 1058] |
| March 31, 2009 |
| Appellate Division, Second Department |
| In the Matter of Damian Gilmartin, Respondent, v LisaAbbas, Appellant. |
—[*1] Rick Stein, Brooklyn, N.Y., for respondent.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appealsfrom an order of the Family Court, Kings County (Pearl, J.), dated January 23, 2008, which, aftera hearing, granted the father's petition to modify a prior custody order of the same court datedJuly 2, 2004, awarding her sole custody of the parties' child, and awarded him sole custody of thesubject child.
Ordered that the order is affirmed, without costs or disbursements.
Custody determinations depend to a great extent upon the hearing court's assessment of thecredibility of the witnesses and of the character, temperament, and sincerity of the parties(see Matter of Brian S. v Stephanie P., 34 AD3d 685, 686 [2006]; Matter of James vHickey, 6 AD3d 536, 537 [2004]). A determination of custody should not be set aside unlessit lacks a sound and substantial basis in the record (see Eschbach v Eschbach, 56 NY2d167 [1982]). A court, in considering questions of child custody, must determine what is in thebest interests of the child (see Domestic Relations Law § 70 [a]; Eschbach vEschbach, 56 NY2d 167 [1982]).
The hearing court may order a change in custody if the totality of the circumstances warrantsa modification in the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167[1982]; Matter of Brian [*2]S. v Stephanie P., 34 AD3d685, 686 [2006]). The Family Court's determination that the best interests of the child would beserved by a change of custody to the father is supported by a sound and substantial basis in therecord and should not be disturbed (see Eschbach v Eschbach, 56 NY2d 167 [1982];Matter of Timosa v Chase, 21 AD3d 1115, 1116 [2005]). Skelos, J.P., Dillon, Covelloand Leventhal, JJ., concur.