PETER B. SKELOS
Robert Marinelli, New York, N.Y., for appellant. David Laniado, Cedarhurst, N.Y., for respondent.
Karen P. Simmons, Brooklyn, N.Y. (Janet Neustaetter of counsel), attorney for the children.
PETER B. SKELOS, J.P., RUTH C. BALKIN, PLUMMER E. LOTT, and ROBERT J. MILLER, JJ.
In a child custody proceeding pursuant to Family Court Act article 6, and two related family offense proceedings pursuant to Family Court Act article 8, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Kings County (Hepner, J.), dated January 18, 2011, as, after a hearing, granted the father's petition to modify a prior order of the same court dated April 30, 2003, awarding the parties joint custody of the subject children, so as to award the father sole custody of the subject children, and denied her family offense petition.
ORDERED that the order dated January 18, 2011, is affirmed insofar as appealed from, without costs or disbursements.
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 Tobar v. Velez–Molina, 95 A.D.3d 1224, 945 N.Y.S.2d 341). The court must consider the totality of the circumstances ( id.). In this regard, the court should consider whether the alleged changed circumstances indicate that one of the parties is unfit, the nature and quality of the relationships between the child and the parties, and the existence of a prior agreement ( id. at 1224–1225, 945 N.Y.S.2d 341). Since 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, 451 N.Y.S.2d 658, 436 N.E.2d 1260). Here, the Family Court's determinations that there had been a change in circumstances since the issuance of the order awarding the parties joint custody of the subject children, and that an award of sole custody of the subject children to the father would be in the their best interests, have a sound and substantial basis in the record and, thus, should not be disturbed ( see Matter of Tobar v. Velez–Molina, 95 A.D.3d at 1225, 945 N.Y.S.2d 341;Matter of Francis v. Cox, 57 A.D.3d 776, 777, 869 N.Y.S.2d 589).
The new facts that the attorney for the subject children sets forth on appeal do not demonstrate that the record before us is no longer sufficient for determining the best interests of the subject children ( see Matter of Michael B., 80 N.Y.2d 299, 318, 590 N.Y.S.2d 60, 604 N.E.2d 122).
Contrary to the mother's contention, she failed to establish, by a fair preponderance of the evidence ( seeFamily Ct. Act § 832), that the father committed the family offense of menacing in the third degree ( seePenal Law § 120.15; Matter of Sharyn PP. v. Richard QQ., 83 A.D.3d 1140, 1141–1142, 921 N.Y.S.2d 656;People v. Nwogu, 22 Misc.3d 201, 204, 871 N.Y.S.2d 824;People v. Stephens, 100 Misc.2d 267, 267–268, 418 N.Y.S.2d 868;see alsoFamily Ct. Act § 812[1] ). Accordingly, the Family Court properly denied her family offense petition.