| Matter of Dorsa v Dorsa |
| 2011 NY Slip Op 09640 [90 AD3d 1046] |
| December 27, 2011 |
| Appellate Division, Second Department |
| In the Matter of Diane Dorsa, Appellant, v Andrew Dorsa,Respondent. |
—[*1] The Penichet Firm, P.C., White Plains, N.Y. (Jeanna M. Alberga of counsel), for respondent. Dana Forster-Navins, Irvington, N.Y., attorney for the children.
In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order ofthe Family Court, Westchester County (Spitz, J.H.O.), entered September 16, 2010, which, aftera hearing, denied her petition to modify the custody provisions set forth in a stipulation ofsettlement dated May 30, 2001, which was incorporated but not merged into the parties'judgment of divorce entered July 11, 2001, so as to, inter alia, award her sole physical custody ofthe parties' children.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs,the petition is granted, and the matter is remitted to the Family Court, Westchester County, forfurther proceedings to establish with all convenient speed an appropriate visitation schedule forthe father.
"A modification of an existing custody arrangement should be allowed only upon a showingof a sufficient change in circumstances demonstrating a real need for a change of custody in orderto insure the child's best interests" (Matter of Nava v Kinsler, 85 AD3d 1186, 1186 [2011], lvdenied 17 NY3d 714 [2011]; see Family Ct Act § 652; Matter of Said v Said, 61 AD3d879, 880 [2009]; Matter ofManfredo v Manfredo, 53 AD3d 498, 499 [2008]; cf. Eschbach v Eschbach, 56NY2d 167, 171 [1982]). In determining the best interests of the children, courts must view the "'totality of [the] circumstances' " (Matterof Gallo v Gallo, 81 AD3d 826, 827 [2011], quoting Friederwitzer vFriederwitzer, 55 NY2d 89, 96 [1982]). Moreover, "while not dispositive, the express wishesof older and more mature children can support the finding of a change in circumstances" (Matter of Burch v Willard, 57 AD3d1272, 1273 [2008]).
Here, the Family Court determined that the mother failed to establish that there was a changein circumstances sufficient to require a change in custody and, therefore, denied her petition. Wefind, however, that under the particular circumstances of this case, including the strongpreference of both children, who are now 13 and 15 years old, respectively, to reside with themother (see Matter of Nell v Nell,87 AD3d 541, 542 [2011]; cf.Matter of Englese v Strauss, 83 AD3d 705, 706-707 [2011]), and the mother's greatersensitivity to the children's particular emotional and psychological [*2]needs, the mother has demonstrated a sufficient change incircumstances to warrant modification of the custody arrangement (see Matter of Oddy vOddy, 296 AD2d 616, 617 [2002]). Consequently, the Family Court improvidently exercisedits discretion in denying the mother's petition (see Matter of Sparacio v Fitzgerald, 73 AD3d 790, 791 [2010]).The case must be remitted, however, to the Family Court, Westchester County, to establish anappropriate visitation schedule for the father, who has played an important role in his children'slives (see Mathie v Mathie, 65AD3d 527, 532 [2009]). Skelos, J.P., Balkin, Leventhal and Lott, JJ., concur.