| Matter of Olivera v Martinez |
| 2009 NY Slip Op 05967 [64 AD3d 714] |
| July 21, 2009 |
| Appellate Division, Second Department |
| In the Matter of Jose Olivera, Respondent, v DianaMartinez, Appellant. |
—[*1] Catherine S. Bridge, Staten Island, N.Y., attorney for the child.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appealsfrom an order of the Family Court, Richmond County (Stanton, Ct. Atty. Ref.), dated April 10,2008, which, after a hearing, granted the father's petition to modify a prior custody order of thesame court (Gonzalez-Roman, Ct. Atty. Ref.) dated May 4, 2005, as amended by an order of thesame court (Hepner, J.) dated January 11, 2006, awarding her sole legal and physical custody ofthe parties' child and awarding him certain visitation, so as to award him sole legal and physicalcustody of the parties' child and award her certain visitation.
Ordered that the order dated April 10, 2008 is affirmed, without costs or disbursements.
To modify an existing custody arrangement, there must be a showing of a change incircumstances such that modification is required to protect the best interests of the child (see Matter of Weinberg v Weinberg,52 AD3d 616 [2008]; Matter ofShehata v Shehata, 31 AD3d 773 [2006]). The best interests of the child are determinedby a review of the totality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167,171 [1982]). Deference should be accorded the hearing court, which saw and heard thewitnesses, and the hearing court's custody determination should not be set aside unless it lacks asound and substantial basis in the record (see Matter of Meyers v Sheehan, 62 AD3d 802 [2009]; Matterof Shehata v Shehata, 31 AD3d at 774).
Here, the Family Court's determination that there had been a change in circumstances sincethe issuance of the prior custody order, and that it was in the child's best interests to award solelegal and physical custody to the father, is supported by a sound and substantial basis in therecord. Accordingly, we decline to disturb that determination (see Matter of Gilmartin v Abbas, 60AD3d 1058 [2009]; Matter of Zeisv Slater, 57 AD3d 793, 794 [2008]; Matter of Weinberg v Weinberg, 52 AD3dat 617).
The mother's remaining contentions are without merit. Prudenti, P.J., Miller, Covello andAustin, JJ., concur.