| Matter of Francois v Grimm |
| 2011 NY Slip Op 04247 [84 AD3d 1082] |
| May 17, 2011 |
| Appellate Division, Second Department |
| In the Matter of Kenneth Francois, Jr.,Appellant, v Meagan E. Grimm, Respondent. (Proceeding No. 1.) In the Matter ofMeagan E. Grimm, Respondent, v Kenneth Francois, Jr., Appellant. (Proceeding No.2.) |
—[*1] Meagan E. Grimm, Orange City, Florida, respondent pro se. John A. Pappalardo, White Plains, N.Y., attorney for the child.
In related child custody and visitation proceedings pursuant to Family Court Act article 6, thefather appeals from an order of the Family Court, Orange County (Kiedaisch, J.), dated March30, 2010, which, after a hearing, inter alia, granted the mother's petition to modify prior orders ofthe same court so as to award sole legal and physical custody of the subject child to her andallowed the child to relocate to Florida where the mother was living at the time and, in effect,denied his petition for custody of the subject child.
Ordered that the order is affirmed, without costs or disbursements.
" 'In order to modify an existing custody or visitation arrangement, there must be a showingthat there has been a change in circumstances such that modification is required to protect thebest interests of the child' " (Matter ofPeralta v Irrizary, 76 AD3d 561, 562 [2010], quoting Matter of Arduino v Ayuso, 70 AD3d682, 682 [2010]; see Matter ofLeichter-Kessler v Kessler, 71 AD3d 1148, 1148-1149 [2010]). " 'The best interests ofthe child are determined by an examination of the totality of the circumstances' " (Matter ofPeralta v Irrizary, 76 AD3d at 562, quoting Matter of Arduino v Ayuso, 70 AD3d at682; see Eschbach v Eschbach, 56 NY2d 167, 172 [1982]). " 'Since any custodydetermination depends to a very great extent upon the hearing court's assessment of thecredibility of the witnesses and of the character, temperament, and sincerity of the parties, itsfindings are generally accorded great respect and will not be disturbed unless they lack a soundand substantial basis in the record, or are contrary to the weight of the evidence' " (Matter of Chabotte v Faella, 77 AD3d749, 749-750 [2010], quoting Trinagel v Boyar, 70 AD3d 816, 816 [2010]).[*2]
Here, the Family Court's award of sole legal and physicalcustody to the mother has a sound and 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 1187, 1188 [2010];Matter of Chabotte v Faella, 77 AD3d at 750; Matter of Jones v Leppert, 75 AD3d 552, 553-554 [2010]; Matter of Tercjak v Tercjak, 49 AD3d772 [2008]). The Family Court properly determined that the proposed relocation of the childto Florida was in the child's best interests (see Matter of Tropea v Tropea, 87 NY2d 727,740-741 [1996]). Rivera, J.P., Skelos, Florio and Austin, JJ., concur.
Motion by the appellant on an appeal from an order of the Family Court, Orange County,dated March 30, 2010, to strike point III of the brief of the attorney for the child and point III ofthe respondent's brief on the ground that they refer to matter dehors the record. By decision andorder on motion of this Court dated March 7, 2011, inter alia, the motion was held in abeyanceand referred to the panel of Justices hearing the appeal for determination upon the argument orsubmission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the submission of the appeal, it is
Ordered that the motion to strike point III of the brief of the attorney for the child and pointIII of the respondent's brief is granted, and those portions of the briefs of the attorney for thechild and the respondent have not been considered in the determination of the appeal.
The new facts set forth in the briefs of the attorney for the child and the respondent do notdemonstrate that the record before us is no longer sufficient for determining the best interests ofthe child (see Matter of Michael B. 80 NY2d 299, 318 [1992]). Rivera, J.P., Skelos,Florio and Austin, JJ., concur.