| Matter of Sidorowicz v Sidorowicz |
| 2012 NY Slip Op 08320 [101 AD3d 737] |
| December 5, 2012 |
| Appellate Division, Second Department |
| In the Matter of Jeffrey R. Sidorowicz,Respondent, v Kelly Sidorowicz, Appellant. |
—[*1] Clifford J. Petroske, P.C., Bohemia, N.Y., for respondent. Diane B. Groom, Central Islip, N.Y. (John Belmonte of counsel), attorney for thechildren.
In a proceeding pursuant to Family Court Act article 6, the mother appeals from (1) an orderof the Family Court, Suffolk County (Whelan, J.), dated August 30, 2011, which, after a hearing,in effect, granted the father's petition to modify a decree of divorce of the Circuit Court for theCity of Newport News, Virginia, entered August 1, 2008, so as to award him sole legal andresidential custody of the parties' children subject to the mother's stated parenting time, and (2) adecision of the same court dated September 9, 2011.
Ordered that the appeal from the decision is dismissed, without costs or disbursements, as noappeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509[1984]); and it is further,
Ordered the that the order is reversed, on the facts and in the exercise of discretion, withoutcosts or disbursements, and the father's petition is denied.
A party seeking modification of an existing custody arrangement must show the existence ofsuch a change in circumstances that modification is required to ensure the continued bestinterests of the child (see Matter ofSparacio v Fitzgerald, 73 AD3d 790, 790-791 [2010]; Matter of Russell v Russell, 72 AD3d973, 974 [2010]; Trinagel vBoyar, 70 AD3d 816, 816 [2010]). Those best interests are determined by a review of allof the relevant circumstances (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Matter of Ross v Ross, 96 AD3d856, 857 [2012]). Here, after a hearing, the Family Court, in effect, granted the father'spetition and awarded him, among other things, sole legal and residential custody of the parties'children.
"Although the determination of the hearing court which saw and heard the witnesses isentitled to great deference, its determination will not be upheld where it lacks a sound andsubstantial basis in the record" (Matter of Sparacio v Fitzgerald, 73 AD3d at 791; see Matter of [*2]Moran v Cortez, 85 AD3d 795, 796-797 [2011]; Matter of Marrero v Centeno, 71 AD3d771, 773 [2010]). Here, the Family Court's determination lacked a sound and substantialbasis in the record (see Matter of Russell v Russell 72 AD3d at 974-975). In particular,the Family Court failed to accord sufficient weight to the children's need for stability and to theimpact of uprooting them, not only from the residence of their mother, but also from the placewhere they have lived since the parties separated in 2007. The court also failed to give sufficientweight to the undisputed evidence regarding the strained relationship between the father and oneof the children (who is now 15 years old), and to that child's clearly expressed preference toremain in New York with the mother (see id.). Since the father failed to establish thatcircumstances had so changed since the initial custody determination that a modification in theexisting custody arrangement was necessary to ensure the continued best interests of the children,his petition should have been denied (see Sano v Sano, 98 AD3d 659 [2012]; Matter of Russell vRussell, 72 AD3d at 974).
In light of our determination, we need not address the mother's remaining contentions.Rivera, J.P., Balkin, Leventhal and Chambers, JJ., concur.