| Matter of Mingo v Belgrave |
| 2010 NY Slip Op 00518 [69 AD3d 859] |
| January 19, 2010 |
| Appellate Division, Second Department |
| In the Matter of Simeon Mingo, Respondent, v HollyBelgrave, Appellant. (Proceeding No. 1.) In the Matter of Holly Belgrave, Appellant, v SimeonMingo, Respondent. (Proceeding No. 2.) |
—[*1] Carol Kahn, New York, N.Y., for respondent. Karen P. Simmons, Brooklyn, N.Y. (Barbara H. Dildine and Janet Neustaetter of counsel),attorney for the child.
In two related child custody and visitation proceedings pursuant to Family Court Act article6, the mother appeals from an order of the Family Court, Kings County (Pearl, J.), dated July 1,2008, which, after a fact-finding hearing, granted the father's petition, in effect, to modify anorder of the same court dated February 17, 1999, awarding custody of the parties' child to her, toaward sole custody of the parties' child to the father and awarded visitation to her.
Ordered that the order dated July 1, 2008, is affirmed, without costs or disbursements.
Pursuant to an order of the Family Court, Kings County (Weinstein, J.), dated February 17,1999, made on the consent of the parties, the mother was awarded custody of the parties'daughter, Shania, and the father was awarded visitation. In April 2004 the father discovered amark on Shania's head and Shania told him that her mother had hit her. The father moved for andobtained temporary custody. Subsequently, the Administration for Children's Services found thereport of abuse arising from that incident to be unfounded. However, Shania remained in herfather's custody. Following a fact-finding hearing on, inter alia, the father's petition, in effect, tomodify the order dated February 17, 1999, the court granted the petition and awarded solecustody to the father and visitation to the mother. The mother appeals.
Where the parents enter into an agreement concerning custody, that agreement will not bemodified unless there is a sufficient change in circumstances since the time of the agreement andunless modification of the custody arrangement is in the best interests of the child (see Baker v Baker, 66 AD3d 722[2009]; Matter of Said v Said, 61AD3d 879, 880 [2009]). In order to determine whether modification of a custodyarrangement is in the best interests of the child, the court must weigh several factors of varying[*2]degrees of importance, including, inter alia, (1) the originalplacement of the child, (2) the length of that placement, (3) the child's desires, (4) the relativefitness of the parents, (5) the quality of the home environment, (6) the parental guidance given tothe child, (7) the parent's financial status, (8) his or her ability to provide for the child'semotional and intellectual development, and (9) the willingness of the parent to assuremeaningful contact between the child and the other parent (see Cuccurullo v Cuccurullo, 21 AD3d 983, 984 [2005]).
Here, Shania has lived with her father for the last approximately 3½ years and isthriving in that environment. Thus, a sufficient change in circumstances has occurred since theorder dated February 17, 1999, to justify modifying that order. Moreover, modification of thatorder is in Shania's best interests, since the father is the parent more likely to assure Shania'smeaningful contact with the noncustodial parent (see Young v Young, 212 AD2d 114,122-123 [1995]). Furthermore, the father is better able to provide for Shania's financial,emotional, and educational needs.
The Family Court did not err in admitting testimony which impeached the mother'scredibility regarding her employment status, because her employment status was not collateral tothe issues in this case (see Badr v Hogan, 75 NY2d 629, 635 [1990]). Moreover,although the court may have erred in admitting certain testimony as to a collateral matter, anyerror was not prejudicial because there was a sound and substantial basis in the record for theFamily Court's custody determination without consideration of the improperly-admittedtestimony (see Matter of Taylor vTaylor, 62 AD3d 1015 [2009]; Matter of Tercjak v Tercjak, 49 AD3d 772 [2008]). Skelos, J.P.,Dickerson, Lott and Roman, JJ., concur.