| Matter of Arduino v Ayuso |
| 2010 NY Slip Op 00841 [70 AD3d 682] |
| February 2, 2010 |
| Appellate Division, Second Department |
| In the Matter of Mark E. Arduino, Sr.,Respondent, v Maritza Ayuso, Appellant. (Proceeding No. 1.) In the Matter of MaritzaAyuso, Appellant, v Mark E. Arduino, Sr., Respondent. (Proceeding No.2.) |
—[*1] Kaminsky & Rich, White Plains, N.Y. (Walter L. Rich of counsel), for respondent. David J. Peck, Harrison, N.Y., attorney for the child Mark Arduino, Jr. Mary Jean Howland, Tuckahoe, N.Y., attorney for the child Jane Arduino.
In related child custody proceedings pursuant to Family Court Act article 6 and familyoffense proceedings pursuant to Family Court Act article 8, the mother appeals, as limited by herbrief, from so much of an order of the Supreme Court, Westchester County (Daly, J.), datedFebruary 29, 2008, as, after a hearing, granted the father's petition to modify an order of theFamily Court, Westchester County (Guarino, J.), entered November 14, 2003, inter alia,awarding the parties joint legal custody of their children Mark Arduino, Jr., and Jane Arduino,with primary physical custody of the child Mark Arduino, Jr., to the mother and certain visitationto the father and, in effect, with primary physical custody of the child Jane Arduino to the fatherand certain visitation to the mother, by awarding the father sole custody of the subject childrenwith certain visitation to the mother.
Ordered that the order dated February 29, 2008, is affirmed insofar as appealed from,without costs or disbursements.
In order to modify an existing custody or visitation arrangement, there must be a showingthat there has been a change in circumstances such that modification is required to protect thebest interests of the child (see Matter ofQuinones v Ibarrondo, 67 AD3d 686 [2009]). The best interests of the child are [*2]determined by an examination of the totality of the circumstances(see Eschbach v Eschbach, 56 NY2d 167, 172 [1982]).
Here, contrary to the mother's contention, the hearing court properly considered the totalityof the circumstances in determining that the best interests of the subject children would beserved by awarding the father sole custody of the children with certain visitation to the mother.The hearing court's determination was made after a hearing, in camera interviews with thesubject children, and a review of home studies of the parties' residences and forensic evaluationsof the parties and the children. Since the hearing court's determination has a sound andsubstantial basis in the record, we will not disturb it (see Matter of Mohabir v Singh, 63 AD3d 1159 [2009]; Matter of Perez v Martinez, 52 AD3d518, 519 [2008]). Dillon, J.P., Covello, Miller and Chambers, JJ., concur.