Diaz v. Diaz

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Docket Number

Attorney(S)

Deana Balahtsis, New York, N.Y. (Meghan R. Buckwalter of counsel), for appellant. Helene Bernstein, Brooklyn, N.Y., for respondent.

Judges

DANIEL D. ANGIOLILLO

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Smart Summary

Factual and Procedural Background

This appeal arises from a child custody proceeding under Family Court Act article 6. The father appealed an order of the Family Court, Kings County, dated May 11, 2011, which, following a hearing, granted the mother's petition to modify a prior custody order from October 5, 2007. The modification awarded sole custody of the children to the mother, with visitation rights to the father.

Legal Issues Presented

Whether the Family Court properly found a change in circumstances sufficient to justify modifying the prior custody order.
Whether awarding sole custody to the mother, with visitation to the father, was in the best interests of the children.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Matter of Peralta v. Irrizary, 76 A.D.3d 561, 906 N.Y.S.2d 590	Modification of custody requires showing a change in circumstances to protect the child's best interests.	Supported the principle that a modification must be justified by changed circumstances.
Matter of Arduino v. Ayuso, 70 A.D.3d 682, 892 N.Y.S.2d 885	Same as above, cited for the standard to modify custody orders.	Reinforced the requirement for changed circumstances.
Matter of Francois v. Grimm, 84 A.D.3d 1082, 924 N.Y.S.2d 275	Custody findings based on credibility and character assessments are accorded great respect and not disturbed unless lacking a sound basis.	Supported deference to the Family Court’s credibility determinations.
Matter of Garcia v. Fountain, 82 A.D.3d 979, 918 N.Y.S.2d 729	Same as above, emphasizing the weight given to trial court’s custody findings.	Reinforced the standard of review applied by the appellate court.
Matter of Chebuske v. Burnhard–Vogt, 284 A.D.2d 456, 726 N.Y.S.2d 697	Intentional interference with parent-child relationship is inconsistent with the child's best interests and suggests unfitness for custody.	Used to support the finding that the father’s conduct warranted modification of custody.
Matter of Miller v. Osik, 94 A.D.3d 1124, 942 N.Y.S.2d 802	Standard for assessing change in circumstances and best interests in custody modifications.	Confirmed the sound and substantial basis for the Family Court’s decision.
Matter of Jones v. Leppert, 75 A.D.3d 552, 904 N.Y.S.2d 503	Same as above.	Supported the court’s assessment of changed circumstances and best interests.
Matter of Lichtenfeld v. Lichtenfeld, 41 A.D.3d 849, 838 N.Y.S.2d 660	Same as above.	Reinforced the court’s reasoning regarding custody modification.
Matter of Carl J.B. v. Dorothy T., 186 A.D.2d 736, 589 N.Y.S.2d 53	Same as above.	Supported the Family Court’s custody determination.
Matter of Caravella v. Toale, 78 A.D.3d 828, 911 N.Y.S.2d 162	Attorney for the child’s position is entitled to some weight in custody determinations.	Supported the court’s reliance on the attorney for the child’s position favoring the mother’s custody.
Matter of Kozlowski v. Mangialino, 36 A.D.3d 916, 830 N.Y.S.2d 557	Same as above.	Reinforced the weight given to the child’s attorney’s recommendations.

Court's Reasoning and Analysis

The court analyzed whether the Family Court properly found a change in circumstances sufficient to justify modifying the custody order. It noted that modification requires that such a change be necessary to protect the child's best interests. The Family Court found that the father engaged in conduct intentionally interfering with the children's relationship with the mother, conduct deemed inconsistent with the child's best interests and indicative of unfitness to act as custodial parent. The appellate court emphasized deference to the Family Court’s credibility assessments and character evaluations of the parties. The Family Court’s determination was supported by the record and consistent with the attorney for the children’s position, which the court acknowledged as carrying weight. Thus, the modification awarding sole custody to the mother was upheld as having a sound and substantial basis.

Holding and Implications

The order dated May 11, 2011, is affirmed, without costs or disbursements.

The direct effect of this decision is to uphold the Family Court’s modification of custody, awarding sole custody to the mother with visitation rights to the father. The opinion does not establish new precedent but reinforces existing standards for modification of custody orders, including the requirement of changed circumstances and deference to trial court credibility findings.

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In the Matter of Eneida DIAZ, respondent, v. Carlos DIAZ, appellant.

DANIEL D. ANGIOLILLO

Deana Balahtsis, New York, N.Y. (Meghan R. Buckwalter of counsel), for appellant. Helene Bernstein, Brooklyn, N.Y., for respondent.
Karen P. Simmons, Brooklyn, N.Y. (Karin Wolfe and Barbara H. Dildine of counsel), attorney for the child.
DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and CHERYL E. CHAMBERS, JJ.

In a child custody proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Kings County (Feldman, J.H.O.), dated May 11, 2011, which, after a hearing, granted the mother's petition to modify a prior order of custody of the same court dated October 5, 2007, so as to award the mother sole custody of the subject children with visitation to him.

ORDERED that the order dated May 11, 2011, is affirmed, without costs or disbursements.

“ ‘In order to modify an existing custody or visitation arrangement, there must be a showing that there has been a change in circumstances such that modification is required to protect the best interests of the child’ ” (Matter of Peralta v. Irrizary, 76 A.D.3d 561, 562, 906 N.Y.S.2d 590, quoting Matter of Arduino v. Ayuso, 70 A.D.3d 682, 892 N.Y.S.2d 885;see Matter of Francois v. Grimm, 84 A.D.3d 1082, 924 N.Y.S.2d 275;Matter of Garcia v. Fountain, 82 A.D.3d 979, 918 N.Y.S.2d 729). “ ‘Since any custody determination depends to a very great extent upon the hearing court's assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties, its findings are generally accorded great respect and will not be disturbed unless they lack a sound and substantial basis in the record, or are contrary to the weight of the evidence’ ” (Matter of Chabotte v. Faella, 77 A.D.3d 749, 749–750, 908 N.Y.S.2d 607, quoting Trinagel v. Boyar, 70 A.D.3d 816, 816, 893 N.Y.S.2d 636;see Matter of Francois v. Grimm, 84 A.D.3d at 1082, 924 N.Y.S.2d 275;Matter of Garcia v. Fountain, 82 A.D.3d at 979, 918 N.Y.S.2d 729).

Here, the evidence established, among other things, that the father engaged in a course of conduct which intentionally interfered with the relationship between the children and the mother. Such action is “so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as custodial parent” (Matter of Chebuske v. Burnhard–Vogt, 284 A.D.2d 456, 458, 726 N.Y.S.2d 697). Thus, the Family Court's determination that there had been a change of circumstances since the parties had agreed in October 2007 that the father should have physical custody of the children, and that it was in the children's best interests to award sole custody to the mother, had a sound and substantial basis in the record ( see Matter of Miller v. Osik, 94 A.D.3d 1124, 942 N.Y.S.2d 802;Matter of Jones v. Leppert, 75 A.D.3d 552, 553, 904 N.Y.S.2d 503;Matter of Lichtenfeld v. Lichtenfeld, 41 A.D.3d 849, 850, 838 N.Y.S.2d 660; Matter of Carl J.B. v. Dorothy T., 186 A.D.2d 736, 589 N.Y.S.2d 53). Moreover, the Family Court's determination was consistent with the position of the attorney for the children, which is entitled to some weight ( see Matter of Caravella v. Toale, 78 A.D.3d 828, 911 N.Y.S.2d 162;Matter of Kozlowski v. Mangialino, 36 A.D.3d 916, 917, 830 N.Y.S.2d 557).