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In re Selliah

Supreme Court of New York, Second Department

June 26, 2013

In the Matter of Kulendiran Selliah, respondent,
v.
Flora Penamente, appellant. (Docket No. V-06396/08)

Mark Brandys, New York, N.Y., for appellant.

Francine Shraga, Brooklyn, N.Y., for respondent.

Robert Gruenspecht, Jamaica, N.Y., attorney for the child.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, ROBERT J. MILLER, SYLVIA HINDS-RADIX, JJ.

DECISION & ORDER

In a custody proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Queens County (Negron, Ct. Atty. Ref.), dated April 17, 2012, as, after a hearing, in effect, granted the father's petition to modify the custody provisions of the parties' judgment of divorce so as to award him sole legal and residential custody of the subject child.

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

"Since any custody determination depends to a very great extent upon the hearing court's assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties, its findings are generally accorded great respect and will not be disturbed unless they lack a sound and substantial basis in the record, or are contrary to the weight of the evidence" (Trinagel v Boyar, 70 A.D.3d 816, 816; see Matter of Diaz v Diaz, 97 A.D.3d 747; Matter of Nava v Kinsler, 85 A.D.3d 1186; Matter of Russell v Russell, 72 A.D.3d 973, 974).

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 Family Ct Act § 652[a]; Matter of Morillo v Nunez, 91 A.D.3d 875; White v Mazzella-White, 84 A.D.3d 1068; Matter of Chabotte v Faella, 77 A.D.3d 749). The best interests of the child are determined by a review of the totality of the circumstances (see Eschbach v Eschbach, 56 N.Y.2d 167, 171; Matter of Griffin v Nikiea Moore-James, 104 A.D.3d 685; Matter of Sidorowicz v Sidorowicz, 101 A.D.3d 737).

Here, the Family Court properly found that there was a change in circumstances sufficient to grant the father's petition to modify the custody provisions of the parties' judgment of divorce so as to award him sole legal and residential custody of the parties' child. Contrary to the mother's contention, the court gave proper consideration to her allegations of domestic violence and its effects upon the child (see Domestic Relations Law § 240[1]; Matter of Frey v Ketcham, 57 A.D.3d 543; Matter of Rodriguez v Guerra, 28 A.D.3d 775; Matter of Moreno v Cruz, 24 A.D.3d 780, 781). Additionally, the court properly considered the underlying allegations in a neglect proceeding filed against the mother. Although the neglect petition was adjourned in contemplation of dismissal, such action was not a determination on the merits and leaves the question of neglect unanswered (see Matter of Marie B., 62 N.Y.2d 352, 359; Matter of Loren B. v Heather A., 13 A.D.3d 998; Matter of Carey K., 265 A.D.2d 617, 618). Moreover, the court correctly found that although the mother was not unfit to have custody of the child due to her mental illness, the father has been the more consistently fit parent (see Matter of Yearwood v Yearwood, 90 A.D.3d 771, 774).

Additionally, the Family Court was not required to accept the recommendations of the court-appointed forensic psychologist, as such recommendations are merely additional factors to be considered (see Bourne v Bristow, 66 A.D.3d 621; Bruno v Bruno, 47 A.D.3d 606; Matter of Kozlowski v Mangialino, 36 A.D.3d 916, 917). The court fully explained its reasons for rejecting the recommendations of the court-appointed psychologist, recommendations with which the attorney for the child did not agree (see Matter of Kelly v Hickman, 44 A.D.3d 941; Berstell v Krasa-Berstell, 272 A.D.2d 566). The Family Court's rationale is amply supported by the record.

RIVERA, J.P., ROMAN, MILLER and HINDS-RADIX, JJ., concur.


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