| Matter of Marino v Marino |
| 2011 NY Slip Op 09749 [90 AD3d 1694] |
| December 30, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of John C. Marino, Respondent, v Sherry L. Marino,Respondent. Sonali R. Suvvaru, Esq., Attorney for the Child,Appellant. |
—[*1]
Appeal from an order of the Family Court, Ontario County (Stephen D. Aronson, A.J.),entered August 18, 2009. The order, among other things, awarded petitioner sole custody of thesubject child.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: The Attorney for the Child appeals from an order that granted the petition ofpetitioner father seeking to modify the parties' prior custody agreement by awarding him solecustody of the parties' child. We note at the outset that, although Family Court may alter anexisting custody agreement only in the event that there is "a showing of a change incircumstances [that] reflects a real need for change to ensure the best interest[s] of the child" (Matter of Carey v Windover, 85 AD3d1574, 1574 [2011], lv denied 17 NY3d 710 [2011] [internal quotation marksomitted]), the Attorney for the Child correctly concedes that there has been such a showing here.
Upon determining that there has been a change in circumstances, the court must considerwhether the requested modification is in the best interests of the child (see generallyEschbach v Eschbach, 56 NY2d 167, 171 [1982]; Friederwitzer v Friederwitzer, 55NY2d 89, 93-95 [1982]). In making that determination, the court must consider all factors thatcould impact the best interests of the child, including the existing custody arrangement, thecurrent home environment, the financial status of the parties, the ability of each parent to providefor the child's emotional and intellectual development and the wishes of the child (seeEschbach, 56 NY2d at 172-173; Fox v Fox, 177 AD2d 209, 210 [1992]). No onefactor is determinative because the court must review the totality of the circumstances (seeEschbach, 56 NY2d at 174). It is well settled, however, that " '[a] concerted effort by oneparent to interfere with the other parent's contact with the child is so inimical to the best interestsof the child . . . as to, per se, raise a strong probability that [the interfering parent] isunfit to act as custodial parent' " (Matterof Amanda B. v Anthony B., 13 AD3d 1126, 1127 [2004]; see Matter of Howden v Keeler, 85AD3d 1561 [2011]). In addition, " 'a court's determination regarding custody and visitationissues, based upon a first-hand assessment of the credibility of the [*2]witnesses after an evidentiary hearing, is entitled to great weightand will not be set aside unless it lacks an evidentiary basis in the record' " (Matter of Dubuque v Bremiller, 79AD3d 1743, 1744 [2010]; seeMatter of Green v Bontzolakes, 83 AD3d 1401 [2011], lv denied 17 NY3d 703[2011]).
Based on our review of the record, we conclude that the totality of the circumstancessupports the award of custody to the father. There is ample evidence in the record to support thecourt's conclusion that respondent mother interfered with the father's visitation with the childthroughout the pendency of the matter, including after she was warned several times by the courtthat visitation must occur according to a detailed schedule promulgated by the court. In addition,the child's treating psychologist and the court-appointed psychologist both testified that a changeof custody would be warranted in the event that the parties could not abide by a strict visitationschedule. Thus, the court properly concluded that awarding custody to the father would be in thebest interests of the child. Contrary to the contention of the Attorney for the Child, the "[c]ourt is,of course, not required to abide by the wishes of a child to the exclusion of other factors in thebest interests analysis" (Matter of Riverav LaSalle, 84 AD3d 1436, 1438 [2011]; see Fox, 177 AD2d at 211-212),especially where the evidence supports the court's conclusion that "to follow [the child's] wisheswould be tantamount to severing her relationship with her father, and [that] result would not bein [the child's] best interest[s]."
We have considered the remaining contentions of the Attorney for the Child and concludethat they are without merit. Present—Smith, J.P., Fahey, Peradotto, Carni and Sconiers, JJ.