| Matter of Conway v Conway |
| 2011 NY Slip Op 08356 [89 AD3d 936] |
| November 15, 2011 |
| Appellate Division, Second Department |
| In the Matter of Jennifer Conway, Respondent, v RichardConway, Appellant. |
—[*1] Jennifer Frisina, formerly known as Jennifer Conway, Lindenhurst, N.Y., respondent pro se. Diane B. Groom, Central Islip, N.Y., Attorney for the Children.
In related child custody proceedings pursuant to Family Court Act article 6 and a family offenseproceeding pursuant to Family Court Act article 8, the father appeals from (1) a decision of the FamilyCourt, Suffolk County (Boggio, Ct. Atty. Ref.), dated January 27, 2011, and (2), as limited by hisbrief, from so much of an order of the same court dated January 28, 2011, as, after a hearing, grantedthe mother's petition to modify the custody provisions of the parties' judgment of divorce entered July15, 2010, so as to award the mother sole legal custody of the parties' children, and directed him toattend a certain anger management class.
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 is affirmed insofar as appealed from, with costs.
Contrary to the father's contention, the issue of legal custody was properly before the FamilyCourt. In the mother's petition, by seeking "final say regarding any major decisions" involving theparties' children, she effectively sought sole legal custody (see 1-10 Child Custody andVisitation Law and Practice § 10.03 [3] [b] [i]; see generally Braiman v Braiman, 44NY2d 584, 589 [1978]).
To modify an existing custody arrangement, there must be a showing of a change in circumstancessuch that modification is required to protect the best interests of the children (see Matter of Sparacio v Fitzgerald, 73AD3d 790 [2010]). " 'Since the Family Court's custody determination is largely dependent uponan assessment of the credibility of the witnesses and upon the character, temperament, and sincerity ofthe parents, its determination should not be disturbed unless it lacks a sound and substantial basis in therecord' " (Matter of Tavarez v Musse, 31AD3d 458 [2006], quoting Matter of Plaza v Plaza, 305 AD2d 607, 607 [2003]).[*2]
"[J]oint custody is encouraged primarily as a voluntaryalternative for relatively stable, amicable parents behaving in mature civilized fashion" (Braiman vBraiman, 44 NY2d at 589-590). "However, joint custody is inappropriate where the parties areantagonistic towards each other and have demonstrated an inability to cooperate on matters concerningthe child[ren]" (Matter of Edwards vRothschild, 60 AD3d 675, 677 [2009] [internal quotation marks omitted]).
Here, a sound and substantial basis exists in the record for the Family Court's determination thatthe relationship between the parties has become so antagonistic that they are unable to cooperate ondecisions regarding the children, and that it is in the best interests of the children for the mother to havesole legal custody of them (see Matter ofGorniok v Zeledon-Mussio, 82 AD3d 767, 768 [2011]).
Further, a sound and substantial basis exists in the record for the Family Court's direction, as partof its order modifying the custody arrangement, that the father attend a certain anger management class,as it is in the children's best interests that he do so (see Matter of Saggese v Steinmetz, 83 AD3d 1144, 1145 [2011]; Matter of Bonthu v Bonthu, 67 AD3d906, 907-908 [2009]).
The father's remaining contention is without merit. Florio, J.P., Dickerson, Chambers and Cohen,JJ., concur.