| Matter of Volpe v Volpe |
| 2009 NY Slip Op 02795 [61 AD3d 691] |
| April 7, 2009 |
| Appellate Division, Second Department |
| In the Matter of Pamela Volpe, Appellant, v ChristopherVolpe, Respondent. |
—[*1] Sidney Siller, New York, N.Y., for respondent. David Standel, Jamaica, N.Y., attorney for the child.
In a proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by herbrief, from so much of an order of the Family Court, Queens County (Modica, J.), dated March4, 2008, as, after a hearing, denied those branches of her petition which were to modify so muchof a judgment of the Supreme Court, Queens County, dated August 11, 2004, as awardedcustody of the parties' son to the father upon the consent of the parties, and to award her solecustody of the son.
Ordered that the order is reversed insofar as appealed from, on the law and in the exercise ofdiscretion, with costs, those branches of the mother's petition which were to modify so much ofthe judgment as awarded custody of the parties' son to the father upon the consent of the parties,and to award her sole custody of the son, are granted.
"In determining whether a custody agreement that was incorporated in a judgment of divorceshould be modified, the paramount issue before the court is whether, under the totality of thecircumstances, a modification of custody is in the best interests of the child" (Matter of Honeywell v Honeywell, 39AD3d 857, 858 [2007]; see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Cieri v Cieri, 56 AD3d 409[2008]). This Court's authority in custody determinations is as broad as that of the hearing court(see Matter of Louise E.S. v W. Stephen S., 64 NY2d 946, 947 [1985]). An appellatecourt may not allow a custody determination to stand [*2]wherethat determination lacks a sound and substantial basis in the record (see Matter of Coyne vCoyne, 150 AD2d 573, 574 [1989]; Skolnick v Skolnick, 142 AD2d 570 [1988]). In"custody disputes, the value of forensic evaluations of the parents and children has long beenrecognized" (Ekstra v Ekstra, 49AD3d 594, 595 [2008]; see Matterof Womack v Jackson, 30 AD3d 433, 434 [2006]; Stern v Stern, 225 AD2d 540,541 [1996]) and the opinions of forensic experts should "not be readily set aside" unlesscontradicted by the record (Bains v Bains, 308 AD2d 557, 558 [2003]; see Young vYoung, 212 AD2d 114 [1995]).
Here, while mindful of the hearing court's advantage in being able to observe the demeanorand assess the credibility of witnesses (see Matter of Louise E.S. v W. Stephen S., 64NY2d 946, 947 [1985]), the denial of sole custody of the parties' son to the mother lacked asound and substantial basis in the record (see Miller v Pipia, 297 AD2d 362, 364-365[2002]; Matter of Fowler v Rivera, 296 AD2d 409 [2002]; see also Musachio v Musachio, 53AD3d 600, 601-602 [2008]). Rivera, J.P., Angiolillo, Eng and Belen, JJ., concur.