Monteiro & Fishman LLP, Hempstead, NY (Marcus Monteiro of
counsel), for appellant.
D. Schraier, New York, NY, for respondent.
Berkowitz, East Meadow, NY, attorney for the children.
PRISCILLA HALL, J.P., ROBERT J. MILLER, FRANCESCA E.
CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
by the mother from an order of the Family Court, Nassau
County (Thomas Rademaker, J.), dated January 21, 2016. The
order, insofar as appealed from, after a hearing, granted
that branch of the father's petition which was to modify
the parties' stipulation of settlement so as to award him
physical custody of the parties' children, and limited
the mother's visitation with the children to certain
that the order is modified, on the law, on the facts, and in
the exercise of discretion, by deleting the provision thereof
limiting the mother's visitation with the children to
certain therapeutic visits; as so modified, the order is
affirmed insofar as appealed from, without costs or
disbursements, and the matter is remitted to the Family
Court, Nassau County, for determination of a new visitation
schedule; and it is further, ORDERED that pending the
determination of the new visitation schedule, the
mother's visitation shall be in accordance with the
visitation provided in an order of temporary custody and
parenting time of the Family Court, Nassau County, dated
November 20, 2015; in addition, the mother shall have the
right to attend any and all school or extracurricular
stipulation of settlement which was incorporated but not
merged into the parties' judgment of divorce dated
October 14, 2011, the parties agreed to joint legal custody
of their children and for the mother to have primary physical
custody, with visitation to the father. In August 2015, the
father petitioned to modify the custody provisions of the
stipulation of settlement so as to award him sole custody of
the children. After a hearing, the Family Court issued an
order dated January 21, 2016, inter alia, granting that
branch of the father's petition which was to award him
physical custody of the parties' children and granting
certain therapeutic visitation to the mother.
Modification of an existing court-sanctioned custody
agreement 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'" (Matter of DeVita v DeVita, 143
A.D.3d 981, 982, quoting Matter of Ruiz v Sciallo,
127 A.D.3d 1205, 1206; see Greenberg v Greenberg,
144 A.D.3d 625; Matter of Pena v Lopez, 140 A.D.3d
967, 968; Matter of DeMille v Pizzo, 129 A.D.3d 957,
957). "In determining whether such a change exists, the
court must determine whether the totality of the
circumstances justifies modification" (Matter of
Connolly v Walsh, 126 A.D.3d 691, 693; see Matter of
Zall v Theiss, 144 A.D.3d 831; Matter of Moore v
Gonzalez, 134 A.D.3d 718, 719). "The factors to be
considered in making a determination with respect to the best
interests of the child include the quality of the home
environment and the parental guidance the custodial parent
provides for the child, the ability of each parent to provide
for the child's emotional and intellectual development,
the financial status and ability of each parent to provide
for the child, the relative fitness of the respective
parents, and the effect an award of custody to one parent
might have on the child's relationship with the other
parent'" (Matter of Yearwood v Yearwood, 90
A.D.3d 771, 773-774, quoting Matter of Elliott v
Felder, 69 A.D.3d 623, 623; see Eschbach v
Eschbach, 56 N.Y.2d 167, 171-172; Matter of Moran v
Cortez, 85 A.D.3d 795, 796; Mohen v Mohen, 53
A.D.3d 471, 473). In addition to these factors, the court
must also "consider the stability and continuity
afforded by maintaining the present arrangement"
(Matter of McDonough v McDonough, 73 A.D.3d 1067,
1068; see Matter of DeVita v DeVita, 143 A.D.3d 981,
982; Angelova v Ruchinsky, 126 A.D.3d 828, 829). In
addition, " [w]hile the express wishes of the child are
not controlling, they are entitled to great weight,
particularly where the child's age and maturity would
make his or her input particularly meaningful'"
(Matter of Manfredo v Manfredo, 53 A.D.3d 498, 500,
quoting Matter of McMillian v Rizzo, 31 A.D.3d 555,
555; see Cook v Cook, 142 A.D.3d 530, 533).
the factors relevant to any custody determination requires an
evaluation of the credibility and sincerity of the parties
involved. Therefore, the hearing court's credibility
findings are accorded deference and its custody
determinations will not be disturbed unless they lack a sound
and substantial basis in the record" (Matter of
DeVita v DeVita, 143 A.D.3d at 982; see Matter of
Brownell v Manemeit, 142 A.D.3d 499, 500; Matter of
Pena v Lopez, 140 A.D.3d at 968).
contrary to the mother's contention, the Family
Court's determination that there had been a change in
circumstances requiring a transfer of custody to the father
in order to ensure the best interests of the children had a
sound and substantial basis in the record and, therefore,
will not be disturbed (see Eschbach v Eschbach, 56
N.Y.2d at 173-174; Matter of DeVita v DeVita, 143
A.D.3d at 982-983; Matter of Rosenblatt v
Rosenblatt, 129 A.D.3d 1091, 1092-1093).
the Family Court's determination limiting the
mother's visitation with the children to certain
therapeutic visits lacks a sound and substantial basis in the
record (cf. Matter of Mikell v Bermejo, 139 A.D.3d
mother's remaining contentions are without merit.
J.P., MILLER, CONNOLLY and ...