| Matter of Jones v Leppert |
| 2010 NY Slip Op 06090 [75 AD3d 552] |
| July 13, 2010 |
| Appellate Division, Second Department |
| In the Matter of Lucas Paul Jones, Respondent, v ChristinaLeppert, Appellant. |
—[*1] John F.X. Burke, Goshen, N.Y., for respondent. Ariana Antonelli, New Windsor, N.Y., attorney for the child.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appealsfrom an order of Family Court, Orange County (Woods, J.), dated May 13, 2009, which, after ahearing, granted the father's petition to modify a prior order of the same court dated November25, 2008, so as to award him sole legal and physical custody of the subject child, with visitationto her.
Ordered that the order dated May 13, 2009, is affirmed, without costs or disbursements.
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]; Matter of Wirth vWirth, 56 AD3d 787, 788 [2008]). The best interests of the child are determined by areview of the totality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167, 172[1982]). Factors to be considered include, inter alia, (1) the original placement of the child, (2)the length of that placement, (3) the child's desires, (4) the relative fitness of the parents, (5) thequality of the home environment, (6) the parental guidance given to the child, (7) the parents'financial status, and (8) the parents' ability to provide for the child's emotional and intellectualdevelopment (see Cuccurullo vCuccurullo, 21 AD3d 983, 984 [2005]; Kuncman v Kuncman, 188 AD2d 517,518 [1992]). Since any custody determination necessarily depends to a great extent upon anassessment of the character and credibility of the parties and witnesses, deference is accorded thehearing court's findings, and its findings will not be disturbed unless lacking a sound andsubstantial basis in the record (see Cuccurullo v Cuccurullo, 21 AD3d at 984).
Contrary to the mother's contention, a sound and substantial basis exists in the record tosupport the Family Court's determination that a sufficient change of circumstances has occurredsuch that a change in custody is required to protect the best interests of the child (see Matterof Zeis v Slater, 57 AD3d at 794). The evidence established, among other things, that themother interfered with the father's visitation rights and attempted to strike the paternalgrandmother during an [*2]exchange of the child. Such acts wereso inconsistent with the child's best interests that they per se raise a strong probability that themother is unfit to act as a custodial parent (see Matter of Lichtenfeld v Lichtenfeld, 41 AD3d 849, 850 [2007];Matter of Kubista v Kubista, 11AD3d 743, 745 [2004]; Matter ofGreene v Gordon, 7 AD3d 528, 529 [2004]; Young v Young, 212 AD2d 114,118 [1995]). Additionally, the Family Court's determination was supported by therecommendation of the court-appointed forensic evaluator, which is entitled to some weight (see Matter of Edwards v Rothschild,60 AD3d 675, 677-678 [2009]; Matter of Rolon v Medina, 56 AD3d 676, 677 [2008]). While theaward of custody separated the subject child from his younger half brother, the visitationschedule affords him ample opportunity to spend time with his sibling (see Matter of Nikolic v Ingrassia, 47AD3d 819, 821 [2008]). Accordingly, the Family Court's determination will not bedisturbed. Dillon, J.P., Miller, Eng and Chambers, JJ., concur.