| Matter of Skeete v Hamilton |
| 2010 NY Slip Op 08950 [78 AD3d 1187] |
| November 30, 2010 |
| Appellate Division, Second Department |
| In the Matter of Chris Skeete, Respondent, v LakishaHamilton, Appellant. |
—[*1] Jessica Bacal, Katonah, N.Y., attorney for the child.
In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order ofthe Family Court, Queens County (Ebrahimoff, Ct. Atty. Ref.), dated May 6, 2009, which, after ahearing, granted the father's petition for a change in custody.
Ordered that the order is affirmed, without costs or disbursements.
" 'A party seeking a change in visitation or custody is not automatically entitled to a hearing,but must make an evidentiary showing sufficient to warrant a hearing' " (Matter of Mazzola vLee, 76 AD3d 531, 531 [2010], quoting Matter of Leichter-Kessler v Kessler, 71AD3d 1148, 1149 [2010]; see Matter of Grant v Hunter, 64 AD3d 779 [2009]; Matterof Riedel v Riedel, 61 AD3d 979 [2009]). Contrary to the contentions of the mother and theattorney for the child, the father's allegations were sufficient to warrant a hearing (see Matterof Vasquez-Williams v Williams, 32 AD3d 859, 860 [2006]).
" 'Modification of an existing custody or visitation arrangement is permissible only upon ashowing that there has been a change in circumstances such that a modification is necessary toensure the continued best interests and welfare of the child' " (Matter of Mazzola v Lee,76 AD3d at 531, quoting Matter of Leichter-Kessler v Kessler, 71 AD3d at 1148-1149;see Matter of Chabotte v Faella, 77 AD3d 749 [2010]; Matter of Peralta vIrrizary, 76 AD3d 561, 562 [2010], lv denied 15 NY3d 714, [2010]; Matter ofBalgley v Cohen, 73 AD3d 1038 [2010]). The best interests of the child are determined by areview of the totality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167, 171[1982]; Matter of Chabotte v Faella, 77 AD3d 749 [2010]; Matter of Peralta vIrrizary, 76 AD3d at 562). Since any custody determination depends to a great extent uponthe hearing court's assessment of the credibility of the witnesses and of the character,temperament, and sincerity of the parties, its findings are generally accorded great deference andwill not be disturbed unless they lack a sound and substantial basis in the record (see Matterof Otero v Nieves, 77 AD3d 756 [2010]). Here, the Family Court's determination awardingcustody to the father, made after a hearing and in camera interviews with the subject child, has asound and substantial basis in the record and, accordingly, it will not be disturbed (see Matterof Chabotte v Faella, 77 AD3d 749 [2010]). Skelos, J.P., Dickerson, Eng and Lott, JJ.,concur.