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Adams v. Perryman

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 8, 2009

IN THE MATTER OF SHAWN ADAMS, RESPONDENT,
v.
JOYCE PERRYMAN, APPELLANT.

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from so much of an order of the Family Court, Westchester County (Duffy, J.), entered November 21, 2008, as, after a hearing, denied her petition to modify a prior custody order of the same court dated June 10, 2005, awarding the father sole legal and physical custody of the parties' child and awarding her certain visitation, as to award her sole legal and physical custody of the child.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

MARK C. DILLON, J. P., ANITA R. FLORIO, HOWARD MILLER, DANIEL D. ANGIOLILLO, JJ.

(Docket No. V-5292-00)

DECISION & ORDER

ORDERED that the order entered November 21, 2008, is affirmed insofar as appealed from, without costs or disbursements.

To modify an existing custody arrangement, there must be a showing of a change in circumstances such that modification is required to protect the best interests of the child (see Matter of Zeis v Slater, 57 AD3d 793, 794). The best interests of the child are determined by a review of the totality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167, 172). Deference should be accorded the hearing court, which saw and heard the witnesses, and the hearing court's custody determination should not be set aside unless it lacks a sound and substantial basis in the record (see Matter of Zeis v Slater, 57 AD3d at 794).

Here, the Family Court's determination that the mother failed to satisfy her burden of demonstrating a change of circumstances warranting a change of custody is supported by a sound and substantial basis in the record. The mother "presented no evidence of parental alienation that would justify a change in physical custody" (Matter of Roelofsen v Tiberie, 64 AD3d 603, 604). Accordingly, we decline to disturb the Family Court's determination (see Matter of Roelofsen v Tiberie, 64 AD3d 603; see also Matter of Chase v Matanda-Chase, 41 AD3d 475, 476; Matter of Bryant v Nazario, 306 AD2d 529).

The mother's remaining contentions are without merit.

DILLON, J. P., FLORIO, MILLER and ANGIOLILLO, JJ., concur.

20091208

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