Lao v. Gonzales

WILLIAM F. MASTRO

Bryan L. Salamone & Associates, P.C., Melville, N.Y. (Melody Maher of counsel), for appellant. Robert Dapelo, Patchogue, N.Y., for respondent.
Robert D. Gallo, Sayville, N.Y., attorney for the child.
WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and BETSY BARROS, JJ.

Appeals from (1) a decision of the Family Court, Suffolk County (Bernard Cheng, J.), dated October 6, 2014, and (2) an order of that court, also dated October 6, 2014. The order, after a hearing, denied so much of the father's petition as sought to modify an order of custody and visitation dated March 2, 2011, so as to award him sole legal and physical custody of the subject child.

ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision ( see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718); and it is further,

ORDERED that the order dated October 6, 2014, is affirmed, without costs or disbursements.

A party seeking modification of an existing custody order must show that there has been a change in circumstances such that modification is required to ensure the continued best interests of the child ( see Matter of Worner v. Gavin, 128 A.D.3d 981, 9 N.Y.S.3d 383; Matter of Fargasch v. Alves, 116 A.D.3d 774, 983 N.Y.S.2d 607; Matter of Karen S. v. Quinn S., 104 A.D.3d 951, 961 N.Y.S.2d 585; Matter of Sidorowicz v. Sidorowicz, 101 A.D.3d 737, 955 N.Y.S.2d 194). The determination must be based on the totality of the circumstances ( see Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95, 447 N.Y.S.2d 893, 432 N.E.2d 765). Factors to be considered include 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, the ability of each parent to provide for the child's emotional and intellectual development, the parental guidance that the custodial parent provides for the child, and the effect an award of custody to one parent might have on the child's relationship with the other parent ( see Matter of Connolly v. Walsh, 126 A.D.3d 691, 5 N.Y.S.3d 241; Matter of Fargasch v. Alves, 116 A.D.3d 774, 775, 983 N.Y.S.2d 607; Matter of Fallarino v. Ayala, 41 A.D.3d 714, 838 N.Y.S.2d 176). Custody determinations turn in large part on assessments of the credibility, character, temperament, and sincerity of the parties, and 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; Matter of Blakeney v. Blakeney, 99 A.D.3d 898, 952 N.Y.S.2d 295; Matter of Roldan v. Nieves, 76 A.D.3d 634, 905 N.Y.S.2d 772).

Here, contrary to the contentions of the father and the attorney for the child, the Family Court's determination that the father failed to establish a change in circumstances since the order of custody and visitation dated March 2, 2011, that warranted a change in custody was supported by a sound and substantial basis in the record. The child has resided with his mother and half-sisters for his entire life, and the evidence failed to establish that the mother is unfit to continue as the custodial parent ( see Cervera v. Bressler, 90 A.D.3d 803, 805–806, 934 N.Y.S.2d 500; Matter of Fallarino v. Ayala, 41 A.D.3d 714, 838 N.Y.S.2d 176). The circumstances relied upon by the father constituted either common parenting issues or isolated events that did not warrant a change in custody ( see Matter of DeRuzzio v. Ruggles, 88 A.D.3d 1091, 931 N.Y.S.2d 271). Furthermore, the courts will not disrupt sibling relationships unless there is an overwhelming need to do so ( see Eschbach v. Eschbach, 56 N.Y.2d 167, 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Matter of Ebert v. Ebert, 38 N.Y.2d 700, 704, 382 N.Y.S.2d 472, 346 N.E.2d 240; Matter of Shannon J. v. Aaron P., 111 A.D.3d 829, 831, 975 N.Y.S.2d 152). Moreover, a child's preference is not determinative and, in weighing this factor, the court must consider the age and maturity of the child ( see Eschbach v. Eschbach, 56 N.Y.2d 167, 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Dintruff v. McGreevy, 34 N.Y.2d 887, 359 N.Y.S.2d 281, 316 N.E.2d 716; Matter of West v. Turner, 38 A.D.3d 673, 832 N.Y.S.2d 78). Indeed, the reasons for a child's preferences may indicate that no weight should be given the child's choice ( see Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 299 N.Y.S.2d 842, 247 N.E.2d 659). Here, the Family Court providently exercised it discretion in according little weight to the child's stated preference, which was made when he was only eight years old ( see Matter of West v. Turner, 38 A.D.3d 673, 832 N.Y.S.2d 78).