| Matter of Picado v Doan |
| 2011 NY Slip Op 09331 [90 AD3d 932] |
| December 20, 2011 |
| Appellate Division, Second Department |
| In the Matter of Jose Picado, Jr., Respondent, v TammyDoan, Appellant. (Proceeding No. 1.) In the Matter of Tammy Doan, Appellant, v Jose Picado,Jr., Respondent. (Proceeding No. 2.) |
—[*1] Arleen Lewis, Blauvelt, N.Y., for respondent. Francesca D.G. Eugene, New City, N.Y., attorney for the child.
In related child custody and family offense proceedings pursuant to Family Court Act articles6 and 8, the mother appeals, as limited by her brief, from so much of an order of the FamilyCourt, Rockland County (Warren, J.), dated August 26, 2010, as, after a hearing, granted thefather's petition to modify a prior order of custody and visitation of the same court dated October26, 2009, which, upon, inter alia, the stipulation of the parties. among other things, awarded theparties joint custody of the parties' children, so as to, inter alia, award him sole legal custody ofthe parties' children, and denied her cross petition to modify the prior order dated October 26,2009, so as to award her sole legal custody of the children.
Ordered that the order dated August 26, 2010, is affirmed insofar as appealed from, withoutcosts or disbursements.
"[W]here parents enter into an agreement concerning custody it will not be set aside unlessthere is a sufficient change in circumstances since the time of the stipulation and unless themodification of the custody agreement is in the best interests of the [child]" (McNally v McNally, 28 AD3d526, 527 [2006] [internal quotation marks omitted]). In determining whether a stipulationentered into by the parents with respect to custody should be modified, a court must consider "thequality of the home environment and the parental guidance the custodial parent provides for thechild, the ability of each parent to provide for the child's emotional and intellectual development,the financial status and ability of each parent to provide for the child, the relative fitness of therespective parents, and the length of time the present custody arrangement has been in effect"(Matter of Krebsbach v Gallagher, 181 AD2d 363, 364 [1992] [citations omitted]; seeMatter of Salvati v Salvati, 221 AD2d 541 [1995]). A change of custody should be madeonly if the totality of the circumstances warrants a modification (see Friederwitzer vFriederwitzer, 55 NY2d 89, 95-96 [1982]). "Since custody determinations turn in large [*2]part on assessments of the credibility, character, temperament andsincerity of the parties, the Family Court's determination should not be disturbed unless it lacks asound and substantial basis in the record" (Matter of Chery v Richardson, 88 AD3d 788, 788 [2011]).
Here, the Family Court did not improvidently exercise its discretion in granting the father'spetition to modify the order dated October 26, 2009, so as to, inter alia, award him sole legalcustody of the parties' children. The record demonstrates that the parties' relationship is soacrimonious that it effectively precludes joint decision-making (see Matter of Chery vRichardson, 88 AD3d at 789; Matter of O'Connell v McDermott, 80 AD3d 701, 701-702 [2011];cf. Matter of Parliman v Labriola,87 AD3d 1144, 1145 [2011]). Moreover, the award of sole legal custody to the father was inthe children's best interests. Consequently, the Family Court also properly denied the mother'scross petition for sole legal custody of the children. Angiolillo, J.P., Dickerson, Lott and Miller,JJ., concur.