| Matter of Thillman v Mayer |
| 2011 NY Slip Op 04930 [85 AD3d 1624] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Lori M. Thillman, Respondent-Appellant, vCharles R. Mayer, Petitioner-Respondent. |
—[*1] Charles Guttman, Ithaca, for respondent-petitioner-respondent. Anne S. Galbraith, Attorney for the Child, Canandaigua, for Lily E.M.
Appeal from an order of the Family Court, Seneca County (Dennis F. Bender, J.), enteredNovember 6, 2009 in a proceeding pursuant to Family Court Act article 6. The order, amongother things, granted sole custody of the subject child to respondent.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner mother appeals from an order that, inter alia, granted respondentfather's cross petition seeking joint custody of the parties' child. The mother had soughtmodification of the existing joint custody arrangement, pursuant to which she had primaryphysical custody of the child upon the agreement of the parties. Contrary to the mother'scontention, the record establishes that there was no prior court order determining custody. Thus,this proceeding involves an initial court determination with respect to custody and, "[a]lthoughthe parties' informal arrangement is a factor to be considered, [the father] is not required to provea substantial change in circumstances in order to warrant a modification thereof" (Matter of Smith v Smith, 61 AD3d1275, 1276 [2009]; see Matter ofMorrow v Morrow, 2 AD3d 1225 [2003]). In addition, contrary to the mother's furthercontention, Family Court properly granted the father sole custody of the parties' child. The court'sdetermination following a hearing that the best interests of the child would be served by such anaward is entitled to great deference (see Eschbach v Eschbach, 56 NY2d 167, 173[1982]), particularly in view of the hearing court's superior ability to evaluate the character andcredibility of the witnesses (see Matter of Paul C. v Tracy C., 209 AD2d 955 [1994]). Wewill not disturb that determination inasmuch as the record establishes that it is the product of thecourt's "careful weighing of [the] appropriate factors" (Matter of Pinkerton v Pensyl, 305AD2d 1113, 1114 [2003]), and it has a sound and substantial basis in the record (see Betro v Carbone, 5 AD3d1110 [2004]; Matter of Thayer v Ennis, 292 AD2d 824 [2002]).[*2]
The mother's contentions concerning visitation are notproperly before this Court on appeal, because "they raise issues not determined by the order" onappeal (Matter of Joseph A. [FausatO.], 78 AD3d 826, 827 [2010]). The mother did not request a Lincoln hearingand thus failed to preserve for our review her further contention that the court abused itsdiscretion in failing to conduct such a hearing (see Matter of Lopez v Robinson, 25 AD3d 1034, 1037 [2006]; Matter of Picot v Barrett, 8 AD3d288, 289 [2004]). In any event, based on the child's young age, we perceive no abuse ofdiscretion in the court's failure to conduct a Lincoln hearing (see Matter of Graves v Stockigt, 79AD3d 1170, 1171 [2010]). We have considered the mother's further contentions andconclude that they are without merit. Present—Smith, J.P., Centra, Fahey, Gorski andMartoche, JJ.