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In re Vargas

Supreme Court of New York, Second Department

November 8, 2017

In the Matter of Rochylin T. Vargas, respondent,
v.
Yali Gutierrez, appellant. (Proceeding No. 1) In the Matter of Yali Gutierrez, appellant,
v.
Rochylin T. Vargas, respondent. (Proceeding No. 2) Docket Nos. V-18418-11, V-18418-13D, V-18418-14G, V-18418-14K, V-18418-14L, V-18418-14M, V-18418-15N

          Argued - October 12, 2017

         D53780 L/htr

          Mark Diamond, New York, NY, for appellant.

          Janet L. Brown, Jamaica, NY, attorney for the child.

          REINALDO E. RIVERA, J.P. SHERI S. ROMAN HECTOR D. LASALLE BETSY BARROS, JJ.

          DECISION & ORDER

         Appeal by the father from an order of the Family Court, Queens County (Marybeth S. Richroath, J.), dated March 23, 2016. The order, insofar as appealed from, after a hearing, in effect, denied the father's petition to modify an order of custody and visitation of that court dated October 28, 2011, so as to award him sole custody of the parties' child.

         ORDERED that the order dated March 23, 2016, is affirmed insofar as appealed from, without costs or disbursements.

         The mother and the father were not married to each other and separated approximately one year after the birth of their child. An initial custody and visitation order dated October 28, 2011, which was entered on consent of the parties, awarded sole custody of the child to the mother and liberal parenting time, including unsupervised overnight visitation, to the father. The father filed a petition for modification of the custody and visitation order, seeking sole custody of the child. After a hearing, the Family Court found that the evidence supported a finding of a change in circumstances, as the child was older and attending school, and that the initial order was no longer compatible with the child's schedule. However, the court determined that the change in circumstances did not warrant a change in custody to the father, and that a change in custody would not be in the child's best interests. The father appeals, and we affirm.

         "Modification of an existing custody arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child" (Matter of Pignataro v Davis, 8 A.D.3d 487, 488; see Matter of Gurewich v Gurewich, 58 A.D.3d 628, 629; Matter of Fallarino v Ayala, 41 A.D.3d 714). The court must determine whether the totality of the circumstances justifies modification (see Friederwitzer v Friederwitzer, 55 N.Y.2d 89, 95-96; Matter of Fargasch v Alves, 116 A.D.3d 774, 775; Matter of Morton v Morton, 158 A.D.2d 458). The factors to be considered include whether the alleged change in circumstances indicates that one of the parties is unfit, the nature and quality of the relationships between the child and the parties, the ability of each parent to provide for the child's emotional and intellectual development, and the effect of awarding custody to one parent on the child's relationship with the other parent (see Eschbach v Eschbach, 56 N.Y.2d 167, 171-173; Matter of Fargasch v Alves, 116 A.D.3d at 775; Matter of Islam v Lee, 115 A.D.3d 952, 953; Matter of Cornejo v Salas, 110 A.D.3d 1068, 1069). "Since weighing the factors relevant to any custody determination requires an evaluation of the credibility and sincerity of the parties involved, the hearing court's findings are accorded deference, and will not be disturbed unless they lack a sound and substantial basis in the record" (Matter of Jackson v Coleman, 94 A.D.3d 762, 763; see Matter of Solovay v Solovay, 94 A.D.3d 898, 899; Matter of Ross v Ross, 86 A.D.3d 615, 616). "Parental alienation of a child from the other parent 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'" (Matter of Doroski v Ashton, 99 A.D.3d 902, 903, quoting Entwistle v Entwistle, 61 A.D.2d 380, 384-385; see Matter of Lawlor v Eder, 106 A.D.3d 739, 740; Bobinski v Bobinski, 9 A.D.3d 441; Stern v Stern, 304 A.D.2d 649; Young v Young, 212 A.D.2d 114, 122).

         Contrary to the father's contentions, the evidence supports the Family Court's finding that the mother did not attempt to alienate the child from him. Further, a review of the court's order indicates that the court gave careful consideration to all relevant factors concerning the best interests of the child (see Matter of Martinez v Hyatt, 86 A.D.3d 571, 572), and there is a sound and substantial basis in the record for the court's determination.

         Accordingly, the Family Court properly, in effect, denied the father's petition to modify the prior order of custody and visitation ...


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