| Matter of McGovern v Lynch |
| 2009 NY Slip Op 03736 [62 AD3d 712] |
| May 5, 2009 |
| Appellate Division, Second Department |
| In the Matter of James McGovern, Appellant, v DeborahLynch, Respondent. |
—[*1] Maria I. Moir, Huntington, N.Y., attorney for the children.
In a proceeding pursuant to Family Court Act article 6 to modify the custody provisions ofthe parties' judgment of divorce, entered May 23, 2000, the father appeals from an order of theFamily Court, Suffolk County (Boggio, Ct. Atty. Ref.), dated March 10, 2008, which, after ahearing, denied his petition for custody of the subject children.
Ordered that the appeal from so much of the order as related to the parties' child Cara isdismissed as academic, without costs or disbursements; and it is further,
Ordered that the order is affirmed insofar as reviewed, without costs or disbursements.
Since the parties' child Cara is now over 18 years of age, she is no longer subject to the orderappealed from (see Matter ofSassower-Berlin v Berlin, 31 AD3d 771, 772 [2006]). Accordingly, the appeal from somuch of the order as related to her must be dismissed as academic.
A change in custody should be made only if the totality of the circumstances warrants amodification in the best interests of the child (see Friederwitzer v Friederwitzer, 55NY2d 89, 95 [1982]; Matter ofLichtenfeld v Lichtenfeld, 41 AD3d 849, 849-850 [2007]). The factors to be consideredin making a custody determination include the quality of the home environment and the parentalguidance the custodial parent [*2]provides for the child, theability of each parent to provide for the child's emotional and intellectual development, thefinancial status and ability of each parent to provide for the child, and the overall relative fitnessof the parties (see Matter of Gonzalez vGonzalez, 15 AD3d 481, 483 [2005]; Matter of Lobo v Muttee, 196 AD2d 585,587 [1993]).
Contrary to the father's contention, the Family Court properly considered the totality of thecircumstances in determining that the best interests of the parties' two younger children would beserved by continuing custody with the mother, with liberal visitation to him. That determinationis supported by the record, which includes the parties' testimony and the Family Court's incamera interviews with the children. Since the Family Court's determination has a sound andsubstantial basis in the record, it will not be disturbed (see Matter of Garcia v Perez, 48 AD3d 812, 813 [2008]). Fisher,J.P., Miller, Chambers and Austin, JJ., concur.