| Matter of Buxenbaum v Fulmer |
| 2011 NY Slip Op 02663 [82 AD3d 1223] |
| March 29, 2011 |
| Appellate Division, Second Department |
| In the Matter of Michael Buxenbaum, Jr.,Respondent, v Rachel Fulmer, Appellant. |
—[*1] Karen M. Caggiano, Shirley, N.Y., for respondent. Robert D. Gallo, Sayville, N.Y., Attorney for the Child.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appealsfrom (1) an order of the Family Court, Suffolk County (Lechtrecker, Ct. Atty. Ref.), datedNovember 20, 2009, which, after a hearing, granted the father's petition to modify a prior order ofcustody and visitation dated January 28, 2008, so as to award him sole legal custody of thesubject child, and (2) an order of the same court dated February 2, 2010, which, upon settingforth conditions of visitation, inter alia, prohibited her from telling the child that any man otherthan the father is the child's biological father.
Ordered that the orders are affirmed, with one bill of costs.
"Modification of an existing custody arrangement is permissible only upon a showing thatthere has been a change in circumstances such that a modification is necessary to ensure thecontinued best interests and welfare of the child" (Matter of Pignataro v Davis, 8 AD3d487, 488 [2004]; see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Matter ofDeochand v Deochand, 80 AD3d 609 [2011]). The best interests of the child are determinedby a review of the totality of the circumstances (see Matter of Skeete v Hamilton, 78AD3d 1187, 1188 [2010]). As a custody determination depends to a great extent upon anassessment of the character and credibility of the parties and witnesses, the findings of the FamilyCourt will not be disturbed unless they lack a sound and substantial basis in the record (seeMatter of Reed v Clemons, 79 AD3d 1044 [2010]; Matter of Tercjak v Tercjak, 49AD3d 772 [2008]).
Here, the Family Court's determination that there had been a change in circumstances sincethe issuance of the prior order of custody and visitation dated January 28, 2008, and that it was inthe child's best interests to award sole custody to the father, is supported by a sound andsubstantial basis in the record (see Matter of Reed v Clemons, 79 AD3d at 1044;Matter of Skeete v Hamilton, 78 AD3d at 1187). Moreover, the Family Court'sdetermination was consistent with the recommendation of the court-appointed forensic evaluator,and the position of the Attorney for the Child, which are entitled to some weight (see Matterof Caravella v Toale, 78 AD3d 828 [2010], lv denied 16 NY3d 706 [2011]).
Contrary to the mother's contentions, the Family Court properly advised her concerning herright to counsel (see Family Ct Act § 262 [a]; Matter of Dorner vMcCarroll, 271 AD2d 530 [2000]).
The Family Court properly took judicial notice of the order of filiation entered on consent.The Family Court's determination that the mother could not testify, in rebuttal to the admission ofthe order of filiation, that she had lacked the capacity to consent to the order of filiation, was notan improvident exercise of discretion (see Matter of Lane v Lane, 68 AD3d 995, 997[2009]).
The Family Court providently exercised its discretion in prohibiting the mother from tellingthe child that any man other than the father is the child's biological father (see Matter ofPowell v Blumenthal, 35 AD3d 615, 617 [2006]). Florio, J.P., Dickerson, Leventhal andBelen, JJ., concur.