| Matter of Nell v Nell |
| 2011 NY Slip Op 06129 [87 AD3d 541] |
| August 2, 2011 |
| Appellate Division, Second Department |
| In the Matter of James Nell, Appellant, v Elizabeth Nell,Respondent. |
—[*1] Jacobi, Sieghardt, Bousanti, Piazza & Fitzpatrick, P.C., Staten Island, N.Y. (George A.Sieghardt of counsel), for respondent. Christopher J. Robles, Brooklyn, N.Y., attorney for the child Andrew Nell. Mitchell P. Newman, Staten Island, N.Y., attorney for the child Julia Nell.
In related custody and visitation proceedings pursuant to Family Court Act article 6, thefather appeals from an order of the Family Court, Richmond County (DiDomenico, J.), datedJune 17, 2010, which, after a hearing, denied his petition to modify the custody and visitationprovisions set forth in a stipulation of settlement dated October 13, 2004, which wasincorporated but not merged into the parties' judgment of divorce entered July 15, 2005, so as toaward him sole legal custody of the subject children, and granted the mother's cross petition tomodify the custody and visitation provisions set forth in the stipulation of settlement so as to, ineffect, award her sole legal and residential custody of the subject children, with visitation to him.
Ordered that the order is modified, on the facts and in the exercise of discretion, (1) bydeleting the provision thereof granting that branch of the mother's cross petition which was tomodify the custody and visitation provisions set forth in the stipulation of settlement so as to, ineffect, award her sole residential custody of the subject children and substituting therefor aprovision denying that branch of the cross petition, and (2) by deleting the provision thereofdirecting that the father have visitation with the subject children on Tuesdays and Thursdays ofevery week, from the time when the children are dismissed from school until 8:30 p.m. duringthe school year, and from 3:30 p.m. until 9 p.m. when school is not in session, and substitutingtherefor a provision directing that the father have overnight weekly visitation on Mondays andTuesdays and that the mother have overnight weekly visitation on Wednesdays and Thursdays; asso modified, the order is affirmed, without costs or disbursements.
"Modification of an existing custody arrangement is permissible only upon a showing [*2]that there has been a change in circumstances such that amodification is necessary to ensure the continued best interests and welfare of the child" (Matter of Buxenbaum v Fulmer, 82AD3d 1223, 1223 [2011] [internal quotation marks omitted]). The best interests of thechildren herein must be determined by a review of the totality of the circumstances (see Matter of Skeete v Hamilton, 78AD3d 1187 [2010]). "Since any custody determination depends to a great extent upon thehearing court's assessment of the credibility of the witnesses and of the character, temperament,and sincerity of the parties, its findings are generally accorded great deference and will not bedisturbed unless they lack a sound and substantial basis in the record" (id. at 1188).
A modification of the existing joint custody arrangement is necessary because the acrimonybetween the parties makes joint decision making impossible (see Matter of Gorniok v Zeledon-Mussio, 82 AD3d 767, 768[2011]). Here, the Family Court's determination that a change from joint legal custody to solelegal custody of the subject children to the mother is supported by a sound and substantial basisin the record.
However, the Family Court improvidently exercised its discretion to the extent that it grantedthat branch of the mother's cross petition which was, in effect, for an award of sole residentialcustody of the children and, accordingly, discontinued the father's weekday overnight visitation.The children clearly expressed a desire to maintain the status quo with respect to the parents'schedule. The children's preference is entitled to some weight, as they were 14 and 12 years ofage, respectively, at the time of the hearing on the petition and cross petition and were, thus,sufficiently mature to express that desire (see generally Matter of Said v Said, 61 AD3d 879, 880 [2009]; Matter of West v Turner, 38 AD3d673 [2007]).
Furthermore, as noted by the father, the Family Court's restriction of his overnight weekdayvisitation with the children, upon its award of sole residential custody to the mother, will actuallycause more disruption in the children's lives. There will be more travel back and forth betweenthe parties' homes under the visitation schedule imposed by the Family Court. In addition, thereis no support in the record for the implied conclusion reached by the Family Court that thechildren would benefit from spending less time with the father, to wit, there are no reports thatthe children were in any danger when they spent time with the father, or a showing that thechildren have ever been deprived of their basic needs of daily living while with the father. Onthis record, the best interests of the children would be served by continuing the joint residentialcustody arrangement and the weekday overnight visitation schedule to which the partiesoriginally agreed, so as to preserve an equal division of parenting time. Skelos, J.P., Balkin,Leventhal and Lott, JJ., concur.