| Matter of Tobar v Velez-Molina |
| 2012 NY Slip Op 04016 [95 AD3d 1224] |
| May 23, 2012 |
| Appellate Division, Second Department |
| In the Matter of Mario Tobar, Respondent, v RosemarieVelez-Molina, Appellant. |
—[*1] Helene Chowes, New York, N.Y., for respondent. Karen P. Simmons, Brooklyn, N.Y. (Tammy Linn and Janet Neustaetter of counsel), attorneyfor the child.
In related proceedings pursuant to Family Court Act articles 6 and 8, the mother appeals, aslimited by her brief, from so much of an order of the Family Court, Kings County (Graham, J.),dated February 9, 2011, as, after a hearing, granted that branch of the father's petition which wasto modify a final order of custody and visitation of the same court (Grosvenor, J.), dated August11, 2006, inter alia, awarding the parties joint legal custody, so as to award the father sole legaland physical custody of the children.
Ordered that the order dated February 9, 2011, is affirmed insofar as appealed from, withoutcosts or disbursements.
The parties have three children together. In a final order of custody and visitation entered onconsent in August 2006 (hereinafter the final custody order), the parties were awarded joint legalcustody of the children, with residential custody to the mother and visitation to the father. Shortlybefore the parties entered into the stipulation, the mother moved with the subject children toAmsterdam, New York, while the father continued to reside in Brooklyn.
In 2007, the father filed a violation petition with the Family Court and, upon the mother'sfailure to appear in court, the Family Court, inter alia, awarded the father temporary custody.Thereafter, the father filed a petition seeking to modify the final custody order based upon achange of circumstances. An attorney was appointed for the children and a hearing wasconducted. In the order appealed from, the Family Court, among other things, granted that branchof the father's petition which was to modify the final custody order so as to award him solephysical and legal custody of the children.
"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 Strand-O'Shea v O'Shea, 32AD3d 398, 398 [2006]; see Eschbach v Eschbach, 56 NY2d 167 [1982]; Matter of [*2]Nava v Kinsler, 85 AD3d 1186, 1186 [2011]; Matter of Harris v Carter, 66 AD3d780 [2009]). "In this regard, the court should consider whether the alleged changedcircumstances indicate one of the parties is unfit, the nature and quality of the relationshipsbetween the child and the parties, and the existence of a prior agreement" (Matter of Fallarino v Ayala, 41 AD3d714, 715 [2007]). Since custody determinations turn in large part on assessments of thecredibility, character, temperament, and sincerity of the parties, the Family Court's determinationshould not be disturbed unless it lacks a sound and substantial basis in the record (seeEschbach v Eschbach, 56 NY2d at 173-174; Matter of Paul T. v Ann-Marie T., 75 AD3d 788 [2010]).
Here, the Family Court's determinations that there had been a change in circumstances sincethe final custody order and that a transfer of custody to the father would be in the children's bestinterests, have a sound and substantial basis in the record and, thus, should not be disturbed (see Matter of Harris v Carter, 66 AD3d780 [2009]; Matter of Battista vFasano, 41 AD3d 712, 713 [2007]; Matter of Galanos v Galanos, 28 AD3d 554, 555 [2006]). Theevidence adduced at the hearing regarding, inter alia, the subject children's academic anddevelopmental difficulties and the father's better ability to care for and attend to the children'sdaily needs and academic development, as well as the preference of the children, supports thedetermination to transfer custody to the father (see Williams v Williams, 78 AD3d 1256 [2010]; Matter ofBattista v Fasano, 41 AD3d at 713; Matter of Galanos v Galanos, 28 AD3d at 555).Dillon, J.P., Leventhal, Hall and Austin, JJ., concur.