| Matter of Aaron W. v Shannon W. |
| 2012 NY Slip Op 05013 [96 AD3d 960] |
| June 20, 2012 |
| Appellate Division, Second Department |
| In the Matter of Aaron W., Respondent, v Shannon W.,Appellant. |
—[*1] Rhett D. Weires, P.C., New Paltz, N.Y., for respondent. Gail Jacobs, Great Neck, N.Y., attorney for the child.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals, aslimited by her reply brief, from so much of an order of the Family Court, Orange County(Currier-Woods, J.), dated August 11, 2010, as, after a hearing, granted the father's cross petitionto modify a prior order of the same court dated February 24, 2009, which, upon a stipulation ofthe parties, awarded the parties joint legal and physical custody of the parties' child, so as toaward him sole legal and physical custody of the parties' child, with visitation to her.
Ordered that the order dated August 11, 2010, is affirmed insofar as appealed from, withcosts to the respondent.
"An agreement between parents concerning custody will not be set aside unless there is asufficient change in circumstances since the time of the agreement and unless the modification ofthe custody agreement is in the best interests of the child" based on the totality of thecircumstances (Matter of Tercjak vTercjak, 49 AD3d 772, 772 [2008]; see Matter of Picado v Doan, 90 AD3d 932, 932-933 [2011])."Since custody determinations turn in large part on assessments of the credibility, character,temperament and sincerity of the parties, the Family Court's determination should not bedisturbed unless it lacks a sound and substantial basis in the record" (Matter of Picado vDoan, 90 AD3d at 933 [internal quotation marks omitted]).
The Family Court's determination that joint custody of the parties' child was no longer aviable option due to the increased animosity between the parties has a sound and substantial basisin the record (id.; see Matter ofPavone v Bronson, 88 AD3d 724, 725 [2011]; Matter of Gorniok v Zeledon-Mussio, 82 AD3d 767, 768 [2011];Matter of Manfredo v Manfredo, 53AD3d 498, 500 [2008]). Notably, the mother's contention that no change in circumstancesoccurred warranting the termination of joint custody is belied by her own testimony at thehearing.
In addition, the Family Court's determination that an award of sole custody to the father wasin the child's best interests has a sound and substantial basis in the record, as the evidence [*2]demonstrated that the father is more likely to put the child's bestinterests ahead of his own and to foster a relationship between her and the mother (see Matterof Picado v Doan, 90 AD3d at 933; Matter of Manfredo v Manfredo, 53 AD3d at499-500; Matter of Rodriguez vIrizarry, 29 AD3d 704 [2006]; cf. Matter of Parliman v Labriola, 87 AD3d 1144, 1145 [2011]).
The mother contends that the Family Court improvidently exercised its discretion inadmitting into evidence the reports of the neutral forensic psychologist because, inter alia, thereports contained inadmissible hearsay and were not submitted under oath as required by 22NYCRR 202.16 (g) (2). The mother failed to preserve these contentions for appellate review, asshe did not make these specific objections before the Family Court (see Matter of Matthews v Matthews,72 AD3d 1631, 1632 [2010]; Matter of Rush v Rush, 201 AD2d 836, 837 [1994]). Inany event, there is a sound and substantial basis in the record for the Family Court'sdetermination without consideration of the forensic reports (see Matter of Tercjak vTercjak, 49 AD3d at 773; Matter ofD'Esposito v Kepler, 14 AD3d 509, 510 [2005]; Murtari v Murtari, 249 AD2d960, 961 [1998], cert denied 525 US 1072 [1999]).
Lastly, this appeal brings up for review the Family Court's order dated June 28, 2010, whichdenied the separate motions of the mother and the former attorney for the child to disqualify thefather's counsel from representing him in this proceeding (see CPLR 5501 [a] [1];Matter of Zirkind v Zirkind, 218 AD2d 745, 745-746 [1995]). The mother contends thatthe father's counsel should have been disqualified from representing the father because he alsorepresented the children of the mother's live-in boyfriend in a separate proceeding to whichneither the mother nor the father are parties.
"[T]he disqualification of an attorney is a matter which rests within the sound discretion ofthe court. A party's entitlement to be represented in ongoing litigation by counsel of his or herown choosing is a valued right which should not be abridged absent a clear showing thatdisqualification is warranted, and the movant bears the burden on the motion" (Campolongo v Campolongo, 2 AD3d476, 476 [2003] [citations omitted]; see Horn v Municipal Info. Servs., 282 AD2d712 [2001]). Here, the Family Court properly denied the separate motions to disqualify thefather's counsel. The mother brought this issue to the Family Court's attention after the hearingwas already underway, even though various documents reflect that she was aware of the dualrepresentation at least eight months before the hearing. Accordingly, the mother waived anyobjection to the father's dual representation (see Matter of Lovitch v Lovitch, 64 AD3d 710, 711 [2009]; cf. M.A.C. Duff, Inc. v ASMAC, LLC,61 AD3d 828, 830 [2009]). Moreover, we agree with the father and the child's currentattorney that neither the mother nor the child suffered any prejudice under the specificcircumstances of this case. Balkin, J.P., Eng, Leventhal and Chambers, JJ., concur.