| Matter of Sparacio v Fitzgerald |
| 2010 NY Slip Op 03943 [73 AD3d 790] |
| May 4, 2010 |
| Appellate Division, Second Department |
| In the Matter of Suzanne E. Sparacio, Appellant, v StevenFitzgerald, Respondent. |
—[*1] Rita A. Pelt, Uniondale, N.Y., for respondent. Ralph R. Carrieri, Mineola, N.Y., attorney for the child.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals, aslimited by her brief, from so much of an order of the Family Court, Nassau County (Pizzolo, Ct.Atty. Ref.), dated October 23, 2008, as, after a hearing, denied her petition to modify an order ofthe same court entered January 5, 2001, awarding the father residential custody of the subjectchild upon the parties' consent, so as to award her residential custody of the child.
Ordered that the order dated October 23, 2008, is reversed insofar as appealed from, on thefacts and in the exercise of discretion, without costs or disbursements, the mother's petition tomodify the order entered January 5, 2001, so as to award her residential custody of the subjectchild is granted, and the matter is remitted to the Family Court, Nassau County, for furtherproceedings to establish an appropriate visitation schedule for the father; and it is further,
Ordered that pending further order of the Family Court, Nassau County, the father shall havevisitation on weekends from Friday at 7:00 p.m. until Sunday at 7:00 p.m., or other times as theparties may agree, with the mother transporting the child to the father's residence, and the fatherreturning the child to the mother's residence, or as the parties may otherwise agree.
To modify an existing custody arrangement, there must be a showing of a change incircumstances such that modification is required to protect the best interests of the child (see Matter of Zeis v Slater, 57 AD3d793, 794 [2008]). The best interests of the child are determined by a review of the totality ofthe circumstances (see Eschbach v Eschbach, 56 NY2d 167, 172 [1982]). Although thedetermination of the hearing court which saw and heard the witnesses is entitled to greatdeference, its determination will not be upheld where it lacks a sound and substantial basis in therecord (see Matter of Summer A.,49 AD3d 722 [2008]; Marcantonio v Marcantonio, 307 AD2d 740, 741 [2003]).
Here, the Family Court's determination that the evidence did not demonstrate a sufficientchange in circumstances is not supported by a sound and substantial basis in the record.Moreover, modification of the existing custody arrangement so as to award the motherresidential custody is in the [*2]child's best interests (seeEschbach v Eschbach, 56 NY2d at 172; Cuccurullo v Cuccurullo, 21 AD3d 983, 984 [2005]).
The mother's remaining contention has been rendered academic in light of our determination.Mastro, J.P., Santucci, Belen and Chambers, JJ., concur.