| White v Mazzella-White |
| 2011 NY Slip Op 04239 [84 AD3d 1068] |
| May 17, 2011 |
| Appellate Division, Second Department |
| James M. White, Jr., Respondent, v TheresaMazzella-White, Appellant. |
—[*1] Michele L. Bermel, Chappaqua, N.Y., attorney for the children.
In a matrimonial action in which the parties were divorced by judgment dated July 16, 2007,the mother appeals from an order of the Supreme Court, Westchester County (Tolbert, J.),entered August 21, 2009, which, after a hearing, granted the father's motion to modify thecustody provisions of the judgment of divorce to award him sole custody of the subject children.
Ordered that the order is affirmed, without costs 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 children (see Matter of Chabotte v Faella, 77AD3d 749, 749 [2010]; Trinagel vBoyar, 70 AD3d 816, 816 [2010]; Matter of Zeis v Slater, 57 AD3d 793, 793 [2008]). The bestinterests of the children are determined by a review of the totality of the circumstances (seeEschbach v Eschbach, 56 NY2d 167, 171 [1982]).
Priority in custody disputes should usually be given to the parent who was first awardedcustody by the court or to the parent who obtained custody by voluntary agreement (seeRobert C.R. v Victoria R., 143 AD2d 262, 264 [1988]; Richman v Richman, 104AD2d 934, 935 [1984]; see also Friederwitzer v Friederwitzer, 55 NY2d 89, 94 [1982]).Moreover, a hearing court's custody determination should not be set aside unless it lacks a soundand substantial basis in the record (see Trinagel v Boyar, 70 AD3d at 816; Matter ofZeis v Slater, 57 AD3d at 794).
Here, the Supreme Court's determination that a change from joint custody to sole custody ofthe subject children to the father is supported by a sound and substantial basis in the record. Therecord established that the mother failed to promote a positive relationship between the childrenand the father, failed to participate in the children's schooling or extracurricular activities, and didnot provide the same stability in the home as the father provided. In addition, the motherconceded that both children have primarily resided in the father's home since 2007 despite theparties' stipulation entered on September 13, 2005, pursuant to which they were to enjoy jointcustody by alternating physical custody week to week. Since that time, the children have thrived,receiving consistent assistance with their school assignments, support and encouragement forextracurricular activities, and appropriate parental supervision. In addition, [*2]the attorney for the children supports the award of sole custody ofthe children to the father (see e.g. Matterof Russell v Russell, 72 AD3d 973, 975 [2010]).
The mother's remaining contentions are without merit.
Accordingly, we decline to disturb the Supreme Court's determination (see Eschbach vEschbach, 56 NY2d 167 [1982]; Matter of Tercjak v Tercjak, 49 AD3d 772 [2008]). Angiolillo, J.P.,Florio, Lott and Austin, JJ., concur.