| Matter of Garcia v Fountain |
| 2011 NY Slip Op 02008 [82 AD3d 979] |
| March 15, 2011 |
| Appellate Division, Second Department |
| In the Matter of Adrian Garcia, Respondent, v SchenidaFountain, Appellant. |
—[*1] Richard Giacoma, Jamaica, N.Y., Attorney for the Child.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appealsfrom an order of the Family Court, Queens County (Ebrahimoff, Ct. Atty. Ref.), dated March 10,2010, which, after a hearing, granted the father's petition to modify a prior order of custody datedDecember 13, 2002, so as to award the parties joint legal and physical custody of the subjectchild.
Ordered that the order dated March 10, 2010, is affirmed, without costs or disbursements.
" '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 531, 531 [2010], quoting Matter of Leichter-Kessler v Kessler,71 AD3d 1148, 1148-1149 [2010]; see Matter of Skeete v Hamilton, 78 AD3d 1187 [2010]). The bestinterests of the child are determined by a review of the totality of the circumstances (seeEschbach v Eschbach, 56 NY2d 167, 171 [1982]; Matter of Skeete v Hamilton, 78AD3d at 1188; Matter of Chabotte vFaella, 77 AD3d 749 [2010]). " 'Since any custody determination depends to a very greatextent upon the 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 respect andwill not be disturbed unless they lack a sound and substantial basis in the record, or are contraryto the weight of the evidence' " (Matter of Chabotte v Faella, 77 AD3d at 749-750,quoting Trinagel v Boyar, 70 AD3d816, 816 [2010]).
Here, the Family Court's award of joint legal and physical custody to the parties has a soundand substantial basis in the record and will not be disturbed (see Eschbach v Eschbach,56 NY2d at 172; Matter of Skeete v Hamilton, 78 AD3d at 1188; Matter of Chabottev Faella, 77 AD3d at 750; Matter ofJones v Leppert, 75 AD3d 552, 553-554 [2010]; Matter of Tercjak v Tercjak, 49 AD3d 772 [2008]). Rivera, J.P.,Dillon, Hall and Roman, JJ., concur.