| Matter of Harris v Carter |
| 2009 NY Slip Op 07413 [66 AD3d 780] |
| October 13, 2009 |
| Appellate Division, Second Department |
| In the Matter of Bervine Harris, Respondent, v Tanya L.Carter, Appellant. |
—[*1] Orrick, Herrington & Sutcliffe LLP, New York, N.Y. (Richard W. Mark and Kristen R.Fournier of counsel), for respondent. Marjorie G. Adler, Garden City, N.Y., attorney for the child Bervine H., Jr. Cynthia Holfester-Neugebauer, Glen Head, N.Y., attorney for the child Ronald H.
In related child custody proceedings pursuant to Family Court Act article 6, the motherappeals from an order of the Family Court, Nassau County (Eisman, J.), dated April 10, 2008,which, after a hearing, granted the father's petition to modify certain custody provisions of theparties' judgment of divorce entered January 5, 2005, awarding the mother sole legal andphysical custody of the parties' three children, so as to award him sole legal and physical custodyof the subject children.
Ordered that the order is affirmed, without costs or disbursements.
In order to modify an existing custody arrangement, there must be a showing of a subsequentchange of circumstances such that modification is required to protect the best interests of thechild (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Pambianchi v Goldberg, 35 AD3d688, 689 [2006]; Matter ofStrand-O'Shea v O'Shea, 32 AD3d 398, 398 [2006]; Scheuering v Scheuering, 27 AD3d 446, 447 [2006]). "Custodydeterminations depend to a great extent upon the hearing court's assessment of the credibility ofthe witnesses and of the character, temperament, and sincerity of the parties" (Matter of McGee v Patron, 58 AD3d633, 633 [2009]; see Matter ofBrian S. v Stephanie P., 34 AD3d 685, 686 [2006]), and a custody determination shouldnot be set aside unless it lacks a sound and substantial basis in the record (see Matter of Rodriguez v Irizarry, 29AD3d 704 [2006]; Neuman vNeuman, 19 AD3d 383, 384 [2005]).
Here, the record supports the Family Court's determination that a change in circumstanceshad occurred since the issuance of the last custody and visitation order based upon the evidenceof the subject children's academic difficulties, which the mother failed to properly address, theirsignificant behavioral problems, and the mother's inability to provide proper supervision of thechildren (see Matter of Hagans vHarden, 12 AD3d 972, 973 [2004]; Matter of Ortiz v Maharaj, 8 AD3d 574, 574 [2004]; see alsoMatter of Dow v Dow, 306 AD2d 529, 530-531 [2003]).[*2]
Additionally, the Family Court's determination that it wasin the children's best interests to transfer custody of the children to the father is supported by asound and substantial basis in the record and should not be disturbed (see Matter of McGee vPatron, 58 AD3d at 633; Matter of Brian S. v Stephanie P., 34 AD3d at 686).Prudenti, P.J., Miller, Chambers and Roman, JJ., concur.