| Matter of Crowder v Austin |
| 2011 NY Slip Op 09124 [90 AD3d 753] |
| December 13, 2011 |
| Appellate Division, Second Department |
| In the Matter of Melissa Crowder, Appellant, v DwayneAustin, Respondent. |
—[*1] Carol Lipton, Brooklyn, N.Y., for respondent. Karen P. Simmons, Brooklyn, N.Y. (Janet Neustaetter of counsel), Attorney for theChild.
In a proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by herbrief, from so much of an order of the Family Court, Kings County (Hepner, J.), dated November17, 2010, as, in effect, granted her petition to modify a prior order of custody and visitation datedOctober 31, 2008, only to the extent of directing that she have one overnight weekend visit andthree day visits with the subject child per month.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
The mother filed the instant petition seeking to modify a prior order of custody and visitationdated October 31, 2008, so as to, among other things, award her overnight visits with the child.The Family Court, in effect, granted the petition only to the extent of directing that the motherhave one overnight weekend visit and three day visits with the child per month. On appeal, themother contends that the Family Court should have permitted her to have two overnight weekendvisits with the child per month.
"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 Chery v Richardson, 88AD3d 788, 788 [2011] [internal quotation marks omitted]). The determination of visitationissues is entrusted to the sound discretion of the Family Court and will not be disturbed unless itlacks a sound and substantial basis in the record (see generally Matter of Ross v Ross, 86 AD3d 615 [2011]).
Here, the Family Court's determination to limit overnight weekend visits to once per month,rather than twice, was supported by a sound and substantial basis in the record. More frequentovernight visits between the child and the mother would result in the child spending less timewith her half-brother, with whom the child has a very close relationship. "Courts will not [*2]disrupt sibling relationships unless there is an overwhelming needto do so" (Matter of Chery v Richardson, 88 AD3d at 789). In addition, the subject child,who is nine years old, expressed her clear preference to have only one overnight weekend visitwith the mother per month. "The child's preference, while not determinative, may also beindicative of the child's best interests" (id).
Accordingly, the Family Court properly, in effect, granted the mother's petition to modify theprior order of custody and visitation dated October 31, 2008, only to the extent of directing thatshe have one overnight weekend visit and three day visits with the child per month. Mastro,A.P.J., Hall, Sgroi and Cohen, JJ., concur.