| Matter of Cadet v Lamour |
| 2011 NY Slip Op 05806 [86 AD3d 538] |
| July 5, 2011 |
| Appellate Division, Second Department |
| In the Matter of Sabrina Cadet, Appellant, v JamesLamour, Respondent. (Proceeding No. 1.) In the Matter of James Lamour, Respondent, v SabrinaCadet, Appellant. (Proceeding No. 2.) |
—[*1] Gail R. Rich, Brooklyn, N.Y., for respondent. Karen P. Simmons, Brooklyn, N.Y. (Sena Kim-Reuter and Janet Neustaetter of counsel),Attorney for the Child.
In related child custody proceedings pursuant to Family Court Act article 6, the motherappeals from an order of the Family Court, Kings County (O'Shea, J.), dated September 1, 2009,which, after a hearing, in effect, (1) granted the father's petition to modify a prior custody orderof the same court (Grosvenor, J.), dated August 3, 2004, so as to award him sole legal andphysical custody of the subject child with visitation to her, (2) denied her petition for sole legaland physical custody of the subject child, and (3) denied her application to relocate with thesubject child to Newburgh, New York. The notice of appeal from a decision of the same courtdated September 14, 2009, is deemed to be a notice of appeal from the order dated September 1,2009 (see CPLR 5512 [a]).
Ordered that the order is affirmed, without costs or disbursements.
A "relocation request must be considered on its own merits with due consideration of all therelevant facts and circumstances and with predominant emphasis being placed on what outcomeis most likely to serve the best interests of the child" (Matter of Tropea v Tropea, 87NY2d 727, 739 [1996]). Here, the Family Court considered the appropriate factors indetermining that it was not in the child's best interests to relocate with the mother to Newburgh(id.).
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 child (see Matter of Zeis v Slater, 57 AD3d793, 794 [2008]). The best interests of the child are determined by a review of the totality ofthe circumstances (see Eschbach v Eschbach, 56 NY2d 167 [1982]). Deference should beaccorded to the credibility determinations of the hearing court, which saw and heard thewitnesses, [*2]and the hearing court's determination should not beset aside unless it lacks a sound and substantial basis in the record (see Matter of Zeis vSlater, 57 AD3d at 794).
Here, the Family Court's determination that the father satisfied his burden of demonstratingthat there existed a change of circumstances warranting a change of custody is supported by asound and substantial basis in the record. The evidence presented at the hearing established,among other things, that the mother interfered with the father's visitation rights and failed toinform the father of important matters regarding the child, such as her proposed impendingrelocation with the child to Newburgh and her unilateral decisions regarding the child'sschooling. Accordingly, we decline to disturb the Family Court's determination (see Matter of Caravella v Toale, 78AD3d 828 [2010]; Matter of Zeis v Slater, 57 AD3d at 794). Dillon, J.P., Eng, Sgroiand Miller, JJ., concur.