| Matter of McClurkin v Bailey |
| 2010 NY Slip Op 07937 [78 AD3d 707] |
| November 3, 2010 |
| Appellate Division, Second Department |
| In the Matter of Willie McClurkin, Respondent, v Miriam Bailey,Appellant. (Proceeding No. 1.) In the Matter of Miriam Bailey, Appellant, v Willie McClurkin,Respondent. (Proceeding No. 2.) |
—[*1]
In related child custody and visitation proceedings pursuant to Family Court Act article 6, themother appeals, as limited by her brief, from (1) stated portions of an order of the Family Court,Suffolk County (Luft, J.), dated May 6, 2009, which, after a hearing, inter alia, awarded the fathercertain visitation with the child, and (2) so much of an order of the same court dated December 23,2009, as, after a hearing, awarded the father sole custody of the child.
Ordered that the appeal from the order dated May 6, 2009, is dismissed as academic, withoutcosts or disbursements, in light of our determination on the appeal from the order dated December 23,2009; and it is further,
Ordered that the order dated December 23, 2009, is affirmed insofar as appealed from, withoutcosts or disbursements.
"To modify an existing custody arrangement, there must be a showing of a change of circumstancessuch that modification is required to protect the best interests of the child" (Matter of Zeis v Slater, 57 AD3d 793,793 [2008]; see Matter of Chabotte v Faella, 77 AD3d 749 [2010]; Matter of Jones v Leppert, 75 AD3d552 [2010]). Deference should be afforded to the hearing court, which had the opportunity toobserve the witnesses and evaluate their credibility, character, and temperaments, and the hearingcourt's custody determination should not be disturbed unless it lacks a sound and substantial basis in therecord (see Eschbach v Eschbach, 56 NY2d 167, 173-174 [1982]; Matter of Jones v Leppert, 75 AD3d552 [2010]; Matter of Weinberg vWeinberg, 52 AD3d 616, 617 [2008]; Matter of Nikolic v Ingrassia, 47 AD3d 819, 820 [2008]; Hanway vHanway, 208 AD2d 499, 500 [1994]).[*2]
Here, the Family Court's determination that there had been asufficient change in circumstances since the issuance of its prior custody order such that it would be inthe best interests of the child to award the father sole custody has a sound and substantial basis in therecord. Although the prior custody order awarded the mother sole custody of the child, the FamilyCourt had warned her that continued attempts to prevent the father from fostering a relationship withthe child could result in a change of custody. The hearing testimony demonstrated that after the issuanceof the prior order, the mother nevertheless interfered with the father's visitation rights by repeatedlyfailing to bring the child to scheduled visitations and to accommodate court-ordered phone contactbetween the father and the child. There was also evidence that the mother made unfounded reports ofchild abuse against the father, and that she continued to be uncooperative and unsupportive of hisefforts to foster a relationship with the child. This conduct was so inconsistent with the child's bestinterests that it per se raised a strong probability that the mother is unfit to act as a custodial parent (see Matter of Jones v Leppert, 75 AD3d552 [2010]; Matter of Zeis v Slater, 57 AD3d at 794; Matter of Weinberg vWeinberg, 52 AD3d at 617; Matter of Nikolic v Ingrassia, 47 AD3d at 820; Matter of Perez v Sepulveda, 21 AD3d558, 559 [2005]). Accordingly, the Family Court's determination should not be disturbed. Skelos,J.P., Dickerson, Eng and Lott, JJ., concur.