| Matter of Tori v Tori |
| 2009 NY Slip Op 08831 [67 AD3d 1021] |
| November 24, 2009 |
| Appellate Division, Second Department |
| In the Matter of Michael Tori, Appellant, v Joan Ann Tori,Respondent. In the Matter of Joan Ann Tori, Respondent, v Michael J. Tori,Appellant. |
—[*1] Arza Feldman, Uniondale, N.Y. (Steven Feldman of counsel), for respondent.
In two related child custody proceedings pursuant to Family Court Act article 6, the fatherappeals, as limited by his brief, from so much of an order of the Family Court, Dutchess County(Gilbert, Ct. Atty. Ref.), dated June 24, 2008, as, after a hearing, upon granting that branch of themother's petition which was to modify the parties' judgment of divorce dated March 4, 2004,awarding the parties joint custody of their child, granted that branch of the petition which was toaward sole legal and physical custody of the child to the mother and, in effect, denied his crosspetition for sole legal and physical custody.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
"Modification of an existing custody arrangement is permissible only upon a showing thatthere has been a change in circumstances such that modification is necessary to ensure the bestinterests of the child" (Matter ofStrand-O'Shea v O'Shea, 32 AD3d 398, 398 [2006]; see Eschbach v Eschbach,56 NY2d 167, 172 [1982]; Matterof Lovitch v Lovitch, 64 AD3d 710 [2009]). "The court's paramount concern in anycustody dispute is whether, under the totality of the circumstances, a transfer of custody is in thebest interests of the child" (Musachio vMusachio, 53 AD3d 600, 601 [2008]; see Eschbach v Eschbach, 56 NY2d at171; Neuman v Neuman, 19 AD3d383, 384 [2005]). Moreover, "[o]ne of the primary responsibilities of a custodial parent is toassure meaningful contact between the children and the other parent . . . and thewillingness of a parent to assure meaningful contact between the children and the other parent isa factor to be considered in making a custody determination" (Matter of Honeywell v Honeywell, 39AD3d 857 [2007] [internal quotation marks omitted]; Young v Young, 212 AD2d114, 122-123 [1995]; see Cuccurullo vCuccurullo, 21 AD3d 983, 984 [2005]). Further, "since any custody determinationdepends to a very great extent upon the hearing court's assessment of the credibility of thewitnesses and of the character, temperament, and sincerity of the parties, its findings [*2]are generally accorded great respect and will not be disturbedunless they lack a sound and substantial basis in the record, or are contrary to the weight of theevidence" (Matter of Neu v Neu, 303 AD2d 509, 510 [2003]; see Matter of Nunn v Bagley, 63AD3d 1068, 1069 [2009]; Matterof Carrasquillo v Cora, 60 AD3d 852 [2009]).
The father does not challenge the Family Court's determination modifying the parties' priorcustody arrangement, incorporated into the judgment of divorce, that awarded them joint custodyof their child, but contends that the mother should not have been awarded sole legal and physicalcustody. Contrary to the father's contention, the Family Court's determination to modify theparties' custody arrangement by awarding sole legal and physical custody to the mother has asound and substantial basis in the record (see Matter of Nunn v Bagley, 63 AD3d 1068 [2009]; Matter ofLovitch v Lovitch, 64 AD3d at 710). The evidence presented at the hearing established, interalia, that the mother was more willing than the father to assure meaningful contact between thechild and the other parent (see Matter of Lovitch v Lovitch, 64 AD3d at 710; Matter of Honeywell v Honeywell, 39AD3d 857 [2007]; Young v Young, 212 AD2d at 122-123). Under thecircumstances of this case, that fact was particularly significant.
The father's remaining contentions are without merit. Mastro, J.P., Belen, Hall and Austin,JJ., concur.