| Matter of Pavone v Bronson |
| 2011 NY Slip Op 07057 [88 AD3d 724] |
| October 4, 2011 |
| Appellate Division, Second Department |
| In the Matter of Richard A. Pavone, Appellant, v BarbaraBronson, Respondent. |
—[*1]
Michael G. Paul, New City, N.Y., for respondent. Sharon M. Faulkner, Poughkeepsie, N.Y., Attorney for the Child.
In a child custody proceeding pursuant to Family Court Act article 6, the father appeals froman order of the Family Court, Dutchess County (Gilbert, Ct. Atty. Ref.), dated July 15, 2009,which, after a hearing, in effect, granted the mother's cross petition to modify an order of thesame court (Forman, J.) dated October 27, 2005, awarding the parties joint custody of their child,so as to give her primary legal and physical custody of the child, and denied his petition tomodify the prior order so as to give him sole custody of the child.
Ordered that the order is affirmed, without costs or disbursements.
The mother and the father obtained joint custody of their son (born on September 10, 2004),pursuant to an order of the Family Court, Dutchess County, dated October 27, 2005. In late 2008,the father petitioned, and the mother cross-petitioned, to modify the order of custody to as to giveeach of them sole custody of the child. At the ensuing hearing, the child's paternal grandfathertestified that the mother abused the child. The mother denied the allegations, and introducedevidence that the father had told the child to lie to his dentist, by telling him that his mouth wasinjured because the mother had pushed him. Child Protective Services conducted an investigationand concluded that the allegations of abuse were unfounded. The father and paternal grandfatherwere also involved in having the mother arrested for making false statements to thepolice—charges that were eventually dismissed. The mother told a social worker that shefeared what she called "intimidation techniques" used by the father.[*2]
In an order dated July 15, 2009, the Family Court,Dutchess County (Gilbert, Ct. Atty. Ref.), in effect, granted the mother's cross petition to modifythe order of custody by giving her primary legal and physical custody of the child, and denied thefather's petition. The court noted its concern that the father and paternal grandfather might try toundermine the relationship between the mother and the child if the father were to be givencustody. The father appeals, and we affirm.
Modification of an existing custody or visitation arrangement is permissible only upon ashowing that there has been a change in circumstances such that a modification is necessary toensure the continued best interests of the child (see Family Ct Act § 652 [a]; Matter of Molinari v Tuthill, 59 AD3d722, 723 [2009]). In determining the best interests of the children, the courts must view the"totality of [the] circumstances" (Friederwitzer v Friederwitzer, 55 NY2d 89, 96 [1982])." 'Since any custody determination depends to a great extent upon the hearing court's assessmentof 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 be disturbed unless they lack asound and substantial basis in the record' " (Matter of Nell v Nell, 87 AD3d 541, 542 [2011], quoting Matter of Skeete v Hamilton, 78 AD3d1187, 1188 [2010]). Here, the evidence in the record demonstrates that the parties have acontentious relationship and are unable to communicate with each other. As such, there is asound and substantial basis for the Family Court's determination that joint custody was no longerappropriate (see Matter of Gorniok vZeledon-Mussio, 82 AD3d 767, 768 [2011]). Further, the record supports the FamilyCourt's determination that primary and physical custody should be with the mother (see Matter of Nell v Nell, 87 AD3d541 [2011]). The evidence presented at the hearing demonstrated that the mother was morewilling than the father "to assure meaningful contact between the child[ ] and the other parent"(Matter of Martinez v Hyatt, 86AD3d 571, 572 [2011] [internal quotation marks omitted]). Accordingly, the Family Courtproperly, in effect, granted the mother's cross petition and denied the father's petition. Dillon,J.P., Eng, Sgroi and Miller, JJ., concur.