| Matter of Nava v Kinsler |
| 2011 NY Slip Op 05714 [85 AD3d 1186] |
| June 28, 2011 |
| Appellate Division, Second Department |
| In the Matter of Betty Nava, Appellant, v FrederickKinsler, Sr., Respondent. |
—[*1] David M. Johnson, Patchogue, 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, Suffolk County (Lynaugh, J.), dated June 21, 2009, which,after a hearing, denied her petition to modify an order of the same court dated February 21, 2007,awarding the father residential custody of the subject child upon the parties' consent, so as toaward her residential custody of the child.
Ordered that the order is affirmed, without costs or disbursements.
A modification of an existing custody arrangement should be allowed only upon a showingof a sufficient change in circumstances demonstrating a real need for a change of custody in orderto insure the child's best interests (seeMatter of Manfredo v Manfredo, 53 AD3d 498, 499 [2008]; Matter of Shehata v Shehata, 31 AD3d773, 773-774 [2006]). The best interests of the child are determined by a review of thetotality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Matter of Chabotte v Faella, 77 AD3d749, 749-750 [2010]). Although the authority of the Appellate Division in matters ofcustody is as broad as that of the hearing court (see Matter of Louise E. S. v W. StephenS., 64 NY2d 946, 947 [1985]; Giatras v Giatras, 202 AD2d 389, 390 [1994]),deference should be accorded the hearing court, which saw and heard the witnesses, and thehearing court's custody determination should not be set aside unless it lacks a sound andsubstantial basis in the record (seeMatter of Adams v Perryman, 68 AD3d 860, 861 [2009]; cf. Matter of Marrero v Centeno, 71AD3d 771, 773 [2010]; Matter ofLarkin v White, 64 AD3d 707, 708-709 [2009]; Matter of Volpe v Volpe, 61 AD3d 691, 692 [2009]).
Here, the Family Court's determination that the mother failed to satisfy her burden ofdemonstrating a change of circumstances warranting a change of custody is supported by a soundand substantial basis in the record (seeTrinagel v Boyar, 70 AD3d 816, 816 [2010]; Matter of Adams v Perryman, 68AD3d at 861; Matter of Bryant v Nazario, 306 AD2d 529, 529 [2003]; Matter ofMurray v Hall, 294 AD2d 504, 505 [2002]). Accordingly, the Family Court properly deniedthe mother's petition to modify an order awarding the father residential custody of the subjectchild upon the parties' consent, so as to award her residential custody of the subject child. Mastro,J.P., Belen, Sgroi and Miller, JJ., concur.