| Matter of Kimberly A.H. v Perez |
| 2012 NY Slip Op 06952 [99 AD3d 903] |
| October 17, 2012 |
| Appellate Division, Second Department |
| In the Matter of Kimberly A.H., Appellant, v Miguel E.Perez, Respondent. |
—[*1] Frank Bruno, Jr., Glendale, N.Y., for respondent. Richard L. Herzfeld, New York, N.Y., attorney for the child.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appealsfrom an order of the Family Court, Queens County (Negron, Ct. Atty. Ref.), dated October 11,2011, which, after a hearing, denied her petition to modify a prior order of the same court datedJune 22, 2005, awarding the parties joint custody of their child, with residential custody to thefather during school months and to the mother during nonschool months.
Ordered that the order dated October 11, 2011, is affirmed, without costs or disbursements.
The parties, who never married or resided together, are the parents of one child born onSeptember 27, 2000. On June 22, 2005, the parties consented to an order of joint custody, withresidential custody to the father during school months and to the mother during non-schoolmonths. The mother had relocated from New York to Florida at the time that order was entered.In August 2006, the mother filed a petition to modify the order dated June 22, 2005. After ahearing, the Family Court denied that petition. In September 2009, the mother again filed apetition to modify the order dated June 22, 2005, alleging, inter alia, as a change ofcircumstances, that she should have custody of the child during school months because hisacademic performance had deteriorated while in the father's custody, and that she was better ableto address the child's special education needs. In an order dated October 11, 2011, the FamilyCourt denied the mother's petition, after a hearing. The mother appeals from that order, and weaffirm
" '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' " (Sano v Sano, 98 AD3d 659, 659 [2012], quoting Matter of Nava v Kinsler, 85 AD3d1186, 1186 [2011]). The best interests of the child are determined by a review of the totalityof the circumstances (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]).
While the authority of the Appellate Division in custody matters is as broad as that [*2]of the hearing court, deference should be accorded to the credibilitydeterminations of the hearing court, which saw and heard the witnesses, and the hearing court'scustody determination should not be set aside unless it lacks a sound and substantial basis in therecord (see Matter of Nava v Kinsler, 85 AD3d at 1186-1187; Matter of Adams v Perryman, 68 AD3d860, 861 [2009]).
Here, the Family Court's determination that the mother failed to satisfy her burden ofdemonstrating a change of circumstances warranting a change of custody in the child's bestinterests is supported by a sound and substantial basis in the record (see Matter of Nava vKinsler, 85 AD3d at 1187; Trinagelv Boyar, 70 AD3d 816 [2010]).
The mother's remaining contentions are without merit.
Accordingly, the Family Court properly denied the mother's petition to modify the orderdated June 22, 2005. Dillon, J.P., Balkin, Austin and Cohen, JJ., concur.