| Matter of Russell v Russell |
| 2010 NY Slip Op 03337 [72 AD3d 973] |
| April 20, 2010 |
| Appellate Division, Second Department |
| In the Matter of Joseph T. Russell, Respondent, v JenniferRussell, Appellant. |
—[*1] Robert R. Meguim, Miller Place, N.Y. (John Ray of counsel), for respondent. Domenik Veraldi, Jr., Islandia, N.Y., attorney for the children.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appealsfrom an order of the Family Court, Suffolk County (Lechtrecker, Ct. Atty. Ref.), dated July 8,2009, which, after a hearing, granted the father's petition to modify an order of custody andvisitation of the same court (Kelly, J.), dated January 11, 2008, by awarding him sole custody ofthe parties' children. By decision and order on motion dated September 8, 2009, this Courtgranted the mother's motion to stay enforcement of the order dated July 8, 2009, pending hearingand determination of the appeal.
Ordered that the order dated July 8, 2009, is reversed, on the law, on the facts, and in theexercise of discretion, without costs or disbursements, the father's petition to modify the order ofcustody and visitation dated January 11, 2008, is denied, and a subsequent visitation order of theFamily Court, Suffolk County, dated August 13, 2009, is vacated.
To modify an existing custody arrangement, there must be a showing of a change incircumstances such that modification is required to ensure the continued best interests of thechild (see Trinagel v Boyar, 70AD3d 816 [2010]; Matter ofDelano v Desimone, 60 AD3d 673 [2009]; Matter of Zeis v Slater, 57 AD3d 793, 794 [2008]). The bestinterests of the child are determined by a review of the totality of the circumstances (seeEschbach v Eschbach, 56 NY2d 167 [1982]). Priority in custody disputes should usually begiven to the parent who was first awarded custody by the court or to the parent who obtainedcustody by voluntary agreement (see Matter of Murray v Hall, 294 AD2d 504 [2002];Robert C.R. v Victoria R., 143 AD2d 262, 264 [1988]; Richman v Richman, 104AD2d 934, 935 [1984]; see also Friederwitzer v Friederwitzer, 55 NY2d 89, 94 [1982]).The hearing court's custody determination will not be set aside unless it lacks a sound andsubstantial basis in the record (see Matter of Zeis v Slater, 57 AD3d at 794).
Here, the Family Court's determination that a change of custody was warranted because themother seemingly placed her own interests before those of her children and did not provide thesame stability in the home as the father could provide lacked a sound and substantial basis in therecord. While neither parent is unfit, and either would provide the child with a comfortable andloving home, the children [*2]have resided in the mother's homesince 2003, when the father left the marital home and relocated out-of-state. While living withtheir mother, the children have thrived both at home and in school. The present custodyarrangement is supported by the position taken by the attorney for the children (see Matter of Bonthu v Bonthu, 67AD3d 906 [2009]; Matter of Verretv Verret, 37 AD3d 479, 481 [2007]). "Under the circumstances of this case, there is noreason to disrupt the stability and continuity of the present situation" (Matter of Bryant vNazario, 306 AD2d 529 [2003]; see Matter of Murray v Hall, 294 AD2d 504[2002]). Covello, J.P., Florio, Eng and Chambers, JJ., concur.