| Matter of Caravella v Toale |
| 2010 NY Slip Op 08101 [78 AD3d 828] |
| November 9, 2010 |
| Appellate Division, Second Department |
| In the Matter of Michael Caravella, Respondent, v KellyAnn Toale, Appellant. |
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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, Orange County (Kiedaisch,J.), dated August 19, 2009, as, after a hearing, granted the father's petition to modify a prior orderof the same court dated August 8, 2007, so as to award him sole legal and physical custody of thesubject children with visitation to her.
Ordered that the order dated August 19, 2009, is affirmed insofar as appealed from, withoutcosts 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" (Matter of Jones v Leppert, 75 AD3d552, 553 [2010]; see Matter ofFallarino v Ayala, 41 AD3d 714 [2007]). The best interests of the child are determinedby a review of the totality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167,171 [1982]).
Here, the Family Court's determination that there had been a change in circumstances sincethe issuance of an order dated August 8, 2007, and that it was in the children's best interests toaward sole custody to the father, is supported by a sound and substantial basis in the record. Theevidence presented at the hearing established, among other things, that the mother interfered withthe father's visitation rights (see Matterof Zeis v Slater, 57 AD3d 793, 794 [2008]), and failed to ensure that the childrenattended school on time as required by the order dated August 8, 2007. Additionally, the recordsupports the Family Court's determination that the father is more likely to foster a relationshipbetween the children and the noncustodial parent (see Cuccurullo v Cuccurullo, 21 AD3d 983, 984 [2005]).Moreover, the Family Court's determination was consistent with the recommendation of thecourt-appointed forensic evaluator, and the position of the attorney for the children, which areentitled to some weight (see Matter ofKozlowski v Mangialino, 36 AD3d 916, 917 [2007]).[*2]
Contrary to the mother's contention, the Family Courtconsidered the appropriate factors in determining, in effect, that it was in the children's bestinterests to relocate to California, where the father lives (see Matter of Tropea v Tropea,87 NY2d 727 [1996]).
Accordingly, the Family Court's determination to award sole legal and physical custody ofthe parties' children to the father will not be disturbed. Dillon, J.P., Angiolillo, Hall and Roman,JJ., concur.