| Matter of Jackson v Coleman |
| 2012 NY Slip Op 02498 [94 AD3d 762] |
| April 3, 2012 |
| Appellate Division, Second Department |
| In the Matter of William Jackson, Respondent, v SabrinaColeman, Appellant. |
—[*1] Margaret Schaefler, Hauppauge, N.Y., for respondent. Francine H. Moss, Ronkonkoma, N.Y., attorney for the children.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals, aslimited by her brief, from so much of an order of the Family Court, Suffolk County (Freundlich,J.), dated March 7, 2011, as, after a hearing, granted the father's petition to modify a prior orderof custody dated April 5, 2006, so as to award him sole custody of the subject children.
Ordered that the order dated March 7, 2011, is affirmed insofar as appealed from, withoutcosts or disbursements.
" 'Modification of an existing custody arrangement is permissible only upon a showing thatthere has been a change in circumstances such that a modification is necessary to ensure thecontinued best interests and welfare of the child' " (Matter of Buxenbaum v Fulmer, 82 AD3d 1223, 1223 [2011],quoting Matter of Pignataro vDavis, 8 AD3d 487, 488 [2004]; see Eschbach v Eschbach, 56 NY2d 167, 171[1982]; Matter of Skeete vHamilton, 78 AD3d 1187, 1187-1188 [2010]). "The best interests of the child aredetermined by a review of the totality of the circumstances" (Matter of Skeete vHamilton, 78 AD3d at 1188; see Eschbach v Eschbach, 56 NY2d at 171; Matterof Buxenbaum v Fulmer, 82 AD3d at 1223). Since weighing the factors relevant to anycustody determination requires an evaluation of the credibility and sincerity of the partiesinvolved, the hearing court's findings are accorded deference, and will not be disturbed unlessthey lack a sound and substantial basis in the record (see Matter of Buxenbaum v Fulmer,82 AD3d at 1224; Matter of Skeete v Hamilton, 78 AD3d at 1188).
Here, the Family Court's determination that there had been a change in circumstances sincethe issuance of the prior order of custody, and that it was in the subject children's best interests toaward sole custody of the children to the father, is supported by a sound and substantial basis inthe record and, thus, will not be disturbed (see Matter of Buxenbaum v Fulmer, 82 AD3dat 1224; Matter of Skeete v Hamilton, 78 AD3d at 1188). While this determination wasnot consistent with the position of the attorney for the children, that position, although entitled tosome weight, was not dispositive (seeMatter of Haimovici v Haimovici, 73 AD3d 1058 [2010]). Rivera, J.P., Leventhal,Roman and Cohen, JJ., concur.