Argued-June 22, 2018
& Goody, LLP, Huntington, NY (Jennifer H. Goody of
counsel), for appellant.
Law Office of Katherine Ryan, P.C., Melville, NY, for
Laurette D. Mulry, Central Islip, NY (John B. Belmonte of
counsel), attorney for the child.
D. SCHEINKMAN, P.J. WILLIAM F. MASTRO BETSY BARROS FRANCESCA
E. CONNOLLY, JJ.
DECISION & ORDER
proceeding pursuant to Family Court Act article 6, the father
appeals from an order of the Family Court, Suffolk County
(Frank A. Tantone, J.), dated September 1, 2017. The order,
after a hearing, granted the mother's petition to modify
the custody provisions of the parties' stipulation of
settlement dated February 5, 2014, which was incorporated but
not merged into the parties' judgment of divorce entered
April 3, 2014, so as to award her sole legal and residential
custody of the parties' child, and denied the
father's cross petition for the same relief in his favor.
that the order is affirmed, without costs and disbursements.
parties were married and have one child born in 2012. As part
of a stipulation of settlement dated February 5, 2014, which
was incorporated but not merged into the parties'
judgment of divorce entered April 3, 2014, the parties agreed
to joint custody of the child. When the parties could not
agree on where the child would enroll in kindergarten, the
mother filed a petition to modify the custody provisions of
the stipulation, as incorporated into the judgment of
divorce, so as to award her sole legal and residential
custody of the child. The father filed a cross petition for
the same relief in his favor. After a hearing, the Family
Court granted the mother's petition and denied the
father's cross petition. The father appeals.
modify an existing court-ordered 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 Matter of Zeis v Slater, 57 A.D.3d 793,
794; Matter of Wirth v Wirth, 56 A.D.3d 787, 788).
There is no prima facie right to the custody of the child in
either parent (see Friederwitzer v Friederwitzer, 55
N.Y.2d 89, 93; Matter of Riccio v Riccio, 21 A.D.3d
1107). The essential consideration in making an award of
custody is the best interests of the child (see
Friederwitzer v Friederwitzer, 55 N.Y.2d at 94;
Matter of Cardozo v Defreitas, 87 A.D.3d 1138).
Factors to be considered include, inter alia, (1) the
original placement of the child, (2) the length of that
placement, (3) the child's desires, (4) the relative
fitness of the parents, (5) the quality of the home
environment, (6) the parental guidance given to the child,
(7) the parents' financial status, and (8) the
parents' ability to provide for the child's emotional
and intellectual development (see Matter of Jonas v
Leppert, 75 A.D.3d 552; Cuccurullo v
Cuccurullo, 21 A.D.3d 983, 984; Kuncman v
Kuncman, 188 A.D.2d 517, 518). Since any custody
determination necessarily depends to a great extent upon an
assessment of the character and credibility of the parties
and witnesses, deference is accorded the hearing court's
findings, and its findings will not be disturbed unless
lacking a sound and substantial basis in the record (see
Cuccurullo v Cuccurullo, 21 A.D.3d at 984).
the circumstances of this case, the parties' inability to
agree on where the child would enroll in kindergarten
constituted a change of circumstances requiring a
modification of the existing joint custody arrangement to
protect the best interests of the child. The Family
Court's determination that the mother "is better
equipped to meet the physical, mental and emotional needs of
the child and that she has the capacity to properly raise and
nurture the child, and continue to foster a relationship
between the child and the father'' has a sound and
substantial basis in the record (see Matter of Feliccia v
Spahn, 108 A.D.3d 702). Accordingly, the court's
decision to award legal and residential custody to the mother
will not be disturbed.
father's remaining contention, that the Family Court
erred by refusing to admit into evidence a parenting