| Matter of Vasquez v Ortiz |
| 2010 NY Slip Op 07772 [77 AD3d 962] |
| October 26, 2010 |
| Appellate Division, Second Department |
| In the Matter of Erik Vasquez, Respondent, v Amy Ortiz,Appellant. |
—[*1] Susan A. DeNatale, Mastic, N.Y., for respondent. Robert C. Mitchell, Riverhead, N.Y. (John B. Belmonte of counsel), attorney for thechild.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appealsfrom an order of the Family Court, Suffolk County (Budd, J.), dated October 19, 2009, which,after a hearing, granted the father's petition to modify a prior order of the same court dated May21, 2008, so as to award the father sole custody of the subject children, with visitation to her.
Ordered that the order is affirmed, without costs or disbursements.
To modify an existing custody or visitation order, there must be a showing that there hasbeen a change in circumstances such that modification is required to protect the best interests ofthe children (see Matter of Arduino vAyuso, 70 AD3d 682 [2010]). The best interests of the children are determined by anexamination of the totality of the circumstances (see Eschbach v Eschbach, 56 NY2d167, 172 [1982]). Factors to be considered include, inter alia: (1) the original placement of thechildren, (2) the length of that placement, (3) the children's desires, (4) the relative fitness of theparents, (5) the quality of the home environment, (6) the parental guidance given to the children,(7) the parents' financial status, and (8) the parents' ability to provide for the children's emotionaland intellectual development (see Matterof Jones v Leppert, 75 AD3d 552 [2010]). Moreover, one of the primary responsibilitiesof a custodial parent is to assure meaningful contact between the children and the noncustodialparent, and the willingness of a parent to assure such meaningful contact between the childrenand the other parent is a factor to be considered in making a custody determination (see Cuccurullo v Cuccurullo, 21 AD3d983 [2005]). 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 tothe hearing court's findings, which will not be disturbed unless lacking a sound and substantialbasis in the record (see Matter of Jonesv Leppert, 75 AD3d 552 [2010]).
A sound and substantial basis exists in the record to support the Family Court's determinationthat a sufficient change of circumstances has occurred such that a change in custody was requiredto protect the children's best interests. The evidence established that the mother repeatedlyviolated the May 21, 2008, custody/visitation order, thereby compelling the father to file morethan 40 [*2]police reports verifying that he was being deprived ofvisitation with some or all of the children. The evidence also established that the mother waspreviously found to have wilfully violated that order. The forensic evaluator testified that themother did not encourage a relationship between the children and the father and that she wasunwilling to cooperate and, hence, coparent, with the father. The above evidence established thatthe mother was interfering with the father's visitation rights and would continue to do so. Themother's acts were so inconsistent with the children's best interests as to raise a strong probabilitythat the mother is unfit to act as the custodial parent (see Matter of Lichtenfeld v Lichtenfeld, 41 AD3d 849 [2007]).Other factors that support the Family Court's determination include the unsuitable state of themother's household, the failure of the mother to set proper disciplinary boundaries for thechildren, the mother's questionable judgment as evidenced, inter alia, by her discussing the courtproceedings with the children, and the mother's failure to appear in court on several occasions.
Viewing the totality of the circumstances, the Family Court's determination was not animprovident exercise of discretion. Accordingly, the Family Court's determination will not bedisturbed. Mastro, J.P., Covello, Dickerson and Roman, JJ., concur.