| Matter of Rosen v Goldhaber |
| 2010 NY Slip Op 04596 [73 AD3d 1184] |
| May 25, 2010 |
| Appellate Division, Second Department |
| In the Matter of Lana Rosen, Appellant, v RobertGoldhaber, Respondent. In the Matter of Robert Goldhaber, Respondent, v Lana Rosen,Appellant. |
—[*1] Russell I. Marnell, P.C., East Meadow, N.Y. (Scott R. Schwartz of counsel), for respondent. Paraskevi Zarkadas, Centereach, N.Y., attorney for the children.
In related child custody and visitation proceedings pursuant to Family Court Act article 6,the mother appeals, as limited by her notice of appeal and brief, from so much of an order of theFamily Court, Suffolk County (Boggio, Ct. Atty. Ref.), dated June 30, 2009, as, after a hearing,in effect, granted that branch of the father's petition which was for additional parenting time tothe extent of awarding him overnight parenting time every Tuesday and Thursday night, anddenied that branch of her petition which was to modify the custody provisions of a stipulation ofsettlement, which was incorporated but not merged into a judgment of divorce of the SupremeCourt, Suffolk County (Rebolini, J.), entered October 28, 2005, so as to award her sole custodyof the parties' children.
Ordered that the order is modified, on the facts and in the exercise of discretion, by deletingthe provision thereof awarding the father overnight parenting time every Tuesday and Thursdaynight and substituting therefor provisions awarding the father overnight parenting time onTuesdays and Thursdays in those alternate weeks in which he does not have overnight parentingtime with the children from the following Friday evening until Monday morning, extending thefather's parenting time until 8:30 p.m. on Tuesdays and Thursdays in the weeks following theweekends in which he does not have the children with him, and directing the father to bring theparties' daughter Hannah to all of her gymnastics meets and practices as well as Hebrew Schoolon Sundays, which occur during his parenting time; as so modified, the order is affirmed insofaras appealed from, without costs or disbursements.
To modify an existing custody arrangement, there must be a showing of a subsequent [*2]change of circumstances so that modification is required to protectthe best interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982];Matter of Fallarino v Ayala, 41 AD3d 714, 714-715 [2007]; Pambianchi vGoldberg, 35 AD3d 688, 689 [2006]; Matter of Strand-O'Shea v O'Shea, 32 AD3d398, 398 [2006]). "Custody determinations depend to a great extent upon the hearing court'sassessment of the credibility of the witnesses and of the character, temperament, and sincerity ofthe parties" (Matter of McGee v Patron, 58 AD3d 633, 633 [2009]; see Matter ofBrian S. v Stephanie P., 34 AD3d 685, 686 [2006]). A custody determination should not beset aside unless it lacks a sound and substantial basis in the record (see Matter of Rodriguez vIrizarry, 29 AD3d 704 [2006]; Neuman v Neuman, 19 AD3d 383, 384 [2005]).
Contrary to the mother's contentions, the record supports the Family Court's determinationthat she failed to demonstrate a change of circumstances warranting a modification of custody(see Matter of Watson v Smith, 52 AD3d 615, 616 [2008]; Marcantonio vMarcantonio, 307 AD2d 740, 741 [2003]).
Although the father sought only to increase his parenting time by 30 minutes on Tuesday andThursday nights and did not request midweek overnight parenting time in his petition, theFamily Court properly considered his oral request during the hearing for such overnightparenting time. "[P]ursuant to CPLR 3017 (a), a court may award undemanded relief if there isno substantial prejudice to an adverse party" (Torre v Giorgio, 51 AD3d 1010, 1011[2008]). Under the circumstances of this case, the mother suffered no substantial prejudice, sincethe father's petition provided her with clear notice that he was seeking an increase in hisparenting time on Tuesday and Thursday evenings. Moreover, the mother had sufficientopportunity to present testimony and evidence relevant to whether overnight parenting timewould be in the best interests of the children (see Matter of Heintz v Heintz, 28 AD3d1154, 1155 [2006]). Additionally, the father satisfied his burden of showing that there had been achange in circumstances such that some increase in his parenting time was necessary to ensurethe continued best interests of the children by allowing them to spend quality, meaningful timewith him and his family. However, the Family Court improvidently exercised its discretion inawarding the father overnight parenting time in those alternate weeks in which he also had thechildren from Friday evening through Monday morning, as such an arrangement wouldeffectively give him overnight parenting time for almost that entire week. The Family Courtshould also have directed the father to bring Hannah to her gymnastics meets and practices, aswell as to Hebrew School on Sundays, when those activities fall within his parenting time(see Family Ct Act § 467 [b] [ii]; Matter of Wilson v McGlinchey, 2NY3d 375, 380 [2004]; Matter of Ammirata v Ammirata, 49 AD3d 829 [2008]; seealso Matter of Sullivan v Sullivan, 40 AD3d 865, 866-867 [2007]). Rivera, J.P., Florio,Miller and Austin, JJ., concur.