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In re Bennett

Supreme Court of New York, Second Department

October 9, 2013

In the Matter of Eric Lee Bennett, responent,
v.
Casey Marie Schultz, appellant.

Sarisohn Law Partners, LLP, Commack, N.Y. (Floyd Sarisohn and Marvin Waxner of counsel), for appellant.

Joseph D. Mirabella, Mastic, N.Y., for respondent.

Robert D. Gallo, Sayville, N.Y., attorney for the child.

PETER B. SKELOS, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, SANDRA L. SGROI, JJ.

DECISION & ORDER

In a child 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, Suffolk County (Burke, Ct. Atty. Ref.), dated December 18, 2012, as, after a hearing, granted the father's petition to modify a prior order of the same court dated August 3, 2009, so as to award him sole legal and physical custody of the subject child.

ORDERED that the order dated December 18, 2012, is affirmed insofar as appealed from, with costs.

Modification of an existing custody arrangement is permissible only upon a showing that there has been a change in circumstances such that modification is necessary to ensure the best interests of the child (see Matter of Sidorowicz v Sidorowicz, 101 A.D.3d 737, 738; Matter of Englese v Strauss, 83 A.D.3d 705, 706; Matter of Said v Said, 61 A.D.3d 879, 880). Parental alienation of a child from the other parent, including willful interference with his or her visitation rights, is "an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the [offending party] is unfit to act as custodial parent" (Entwistle v Entwistle, 61 A.D.2d 380, 384-385; see Matter of Lawlor v Eder, 106 A.D.3d 739, 740; Matter of Doroski v Ashton, 99 A.D.3d 902, 903; Matter of Ahmad v Naviwala, 306 A.D.2d 588, 591). As 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 be disturbed unless it lacks a sound and substantial basis in the record (see Eschbach v Eschbach, 56 N.Y.2d 167, 173-174; Matter of Doroski v Ashton, 99 A.D.3d at 903). Here, the court's determinations that there had been a change in circumstances, and that a transfer of sole legal and physical custody to the father would be in the child's best interests, have a sound and substantial basis in the record and, thus, should not be disturbed (see Eschbach v Eschbach, 56 N.Y.2d at 171; Matter of Lawlor v Eder, 106 A.D.3d at 740; Matter of Doroski v Ashton, 99 A.D.3d at 903; cf. Matter of Martinez v Hyatt, 86 A.D.3d 571, 572).

SKELOS, J.P., BALKIN, AUSTIN and SGROI, JJ., concur.


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