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In re Oyefeso

Supreme Court of New York, Second Department

March 1, 2017

In the Matter of Adefolahan Oyefeso, respondent,
v.
Marie Sully, appellant. Docket Nos. V-05644-12, V-05645-12

          Monteiro & Fishman LLP, Hempstead, NY (Marcus Monteiro of counsel), for appellant.

          Seth D. Schraier, New York, NY, for respondent.

          Brynde Berkowitz, East Meadow, NY, attorney for the children.

          L. PRISCILLA HALL, J.P., ROBERT J. MILLER, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.

          DECISION & ORDER

         Appeal 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 therapeutic visits.

         ORDERED 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 activities.

         In a 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).

         "Weighing 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).

         Here, 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).

         However, 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 954, 955).

         The mother's remaining contentions are without merit.

          HALL, J.P., MILLER, CONNOLLY and ...


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