| Matter of Chery v Richardson |
| 2011 NY Slip Op 07215 [88 AD3d 788] |
| October 11, 2011 |
| Appellate Division, Second Department |
| In the Matter of Justin Chery, Appellant, v JillianneRichardson, Respondent. |
—[*1] Peter Wilner, Jamaica, N.Y., for respondent. Lauri Gesualdo, Jamaica, N.Y., attorney for the children.
In a child custody proceeding pursuant to Family Court Act article 6, the father appeals (1)from a decision of the Family Court, Queens County (Rood, Ct. Atty. Ref.), dated June 23, 2010,made after a hearing, and (2), as limited by his brief, from so much of an order of the same courtdated June 25, 2010, as, upon the decision, denied his petition to modify a prior order of the samecourt dated December 3, 2004, so as to award him sole custody of the parties' child.
Ordered that the appeal from the decision is dismissed, without costs or disbursements, as noappeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509[1984]); and it is further,
Ordered that the order dated June 25, 2010, is affirmed insofar as appealed from, withoutcosts or disbursements.
The parties have one child together, a daughter born November 24, 2000. By order datedDecember 3, 2004, entered upon the father's consent, custody was awarded to the mother withvisitation to the father. On August 23, 2006, the father filed a petition pursuant to Family CourtAct article 6 seeking to modify the order dated December 3, 2004, so as to award him solecustody of the child. After a hearing, the Family Court denied the petition. The father appeals,and we affirm insofar as appealed from.
"Modification of an existing custody arrangement is permissible only upon a showing thatthere has been a change in circumstances such that modification is necessary to ensure the bestinterests of the child. The court must consider the totality of the circumstances" (Matter of Strand-O'Shea v O'Shea, 32AD3d 398, 398 [2006]; see Eschbach v Eschbach, 56 NY2d 167 [1982]; Matter of Riedel v Riedel, 61 AD3d979 [2009]). "In this regard, the court should consider whether the alleged changedcircumstances indicate one of the parties is unfit, the nature and quality of the relationshipsbetween the child and the parties, and the existence of a prior agreement" (Matter of Fallarino v Ayala, 41 AD3d714, 715 [2007]). Since custody determinations turn in large part on assessments of thecredibility, character, temperament and sincerity of the parties, the Family Court's determinationshould not be disturbed unless it lacks a sound and substantial basis in the record (seeEschbach v Eschbach, 56 NY2d at 173-174; Salvatore v Salvatore, 68 AD3d 966 [2009]; Matter of Berkham v Vessia, 63 AD3d1155 [2009]).[*2]
The Family Court's determination that there had not beena change of circumstances sufficient to warrant a change in custody had a sound and substantialbasis in the record and will not be disturbed. While the mother displayed serious parenting lapsesduring 2006, the issues concerning the child's hygiene and school attendance and performancehad been ameliorated by the mother. The mother's history of failing to encourage, and at timeswillfully interfering with, visitation had likewise been ameliorated by the time of the FamilyCourt's determination. Further, a change of custody was not warranted based upon the mother'sevening work schedule (see Matter of Bjork v Bjork, 58 AD3d 951 [2009]; Matter ofMoreau v Sirles, 268 AD2d 811 [2000]). The mother retained a live-in babysitter who, alongwith the child's older half-siblings, adequately cared for the child when the mother was at work.Moreover, the social worker testified that, while the child had a loving relationship with bothparents, her primary bond was with her mother and half-siblings, with whom she resided and wasextremely close. Courts will not disrupt sibling relationships unless there is an overwhelmingneed to do so (see Eschbach v Eschbach, 56 NY2d at 173; Matter of Ebert vEbert, 38 NY2d 700, 704 [1976]; Matter of Murray v Hall, 294 AD2d 504 [2002]).The attorney for the child also took the position that custody should remain with the mother, andthe child communicated that preference. Recommendations of court-appointed evaluators and theposition of the attorney for the child are not determinative, but they are factors to be consideredand are entitled to some weight (seeBaker v Baker, 66 AD3d 722 [2009]; Matter of Kozlowski v Mangialino, 36 AD3d 916 [2007]). Thechild's preference, while not determinative, may also be indicative of the child's best interests(see Dintruff v McGreevy, 34 NY2d 887 [1974]; Cieri v Cieri, 56 AD3d 409 [2008]). Finally, joint custody was notfeasible, since the parties failed to communicate and work well together, if at all, in parenting thechild (see Matter of Bjork v Bjork, 58 AD3d 951 [2009]; Matter of Benjamin v Benjamin, 48AD3d 912 [2008]).
The father's contentions regarding his violation petitions are not properly before this Court onthese appeals.
The father's remaining contention is without merit. Dillon, J.P., Belen, Roman and Miller,JJ., concur.