LONGO v. WRIGHT (2005)

 In this proceeding commenced pursuant to Family Court Act article 6, petitioner father appeals from an order insofar as it denied that part of his petition seeking the transfer of custody of the parties' three children from respondent mother to him.   Reversal is not required as a result of Family Court's taking of respondent's testimony by telephone.   Petitioner has failed to preserve for our review his contention that the taking of such testimony deprived him of his constitutional rights of due process and equal protection (see Matter of Shavon H., 1 A.D.3d 123, 124, 766 N.Y.S.2d 208;   Matter of Tamara Liz H., 300 A.D.2d 202, 203, 752 N.Y.S.2d 634;  Matter of Beebe v. Beebe, 298 A.D.2d 843, 843-844, 747 N.Y.S.2d 815;  Matter of Katherine D., 275 A.D.2d 985, 986, 715 N.Y.S.2d 196).   We further conclude that petitioner was not deprived of effective assistance of counsel, but rather received meaningful assistance at the hearing, notwithstanding assigned counsel's isolated alleged deficiency in failing to object to the taking of respondent's testimony by telephone (see Matter of Whitley v. Leonard, 5 A.D.3d 825, 827, 772 N.Y.S.2d 620;  Matter of Bates v. Bates, 290 A.D.2d 732, 734, 736 N.Y.S.2d 488;  see also Matter of Hares v. Walker, 8 A.D.3d 1019, 1020, 778 N.Y.S.2d 342).

 With respect to the merits, we note that an “existing custodial arrangement should not be changed ‘merely because of changes in marital status, economic circumstances or improvements in moral or psychological adjustment, at least so long as the custodial parent has not been shown to be unfit, or perhaps less fit, to continue as the proper custodian’ (Obey v. Degling, 37 N.Y.2d 768, 770 [375 N.Y.S.2d 91, 337 N.E.2d 601];  see, Fox v. Fox, 177 A.D.2d 209, 211 [582 N.Y.S.2d 863] )” (Matter of Atkins v. Maynard, 288 A.D.2d 878, 879, 732 N.Y.S.2d 298, lv. denied 97 N.Y.2d 609, 739 N.Y.S.2d 357, 765 N.E.2d 853;  see Matter of Whitford v. Grandinetti, 6 A.D.3d 1178, 775 N.Y.S.2d 720).   The party seeking a change of custody must demonstrate “a change in circumstances which reflects a real need for change to ensure the best interest[s] of the child” (Matter of Irwin v. Neyland, 213 A.D.2d 773, 773, 623 N.Y.S.2d 18;  see Whitford, 6 A.D.3d 1178, 775 N.Y.S.2d 720).  “ ‘A custody determination by the trial court must be accorded great deference and should not be disturbed where, as here, it is supported by a sound and substantial basis in the record’ (Matter of Green v. Mitchell, 266 A.D.2d 884, 884 [697 N.Y.S.2d 899] [citations omitted] )” (Sorce v. Sorce, 16 A.D.3d 1077, 1077, 793 N.Y.S.2d 304).   Based on the record, the court properly determined that petitioner is less fit than respondent and less able than she to provide for the children's stability and well-being (see Matter of Pinkerton v. Pensyl, 305 A.D.2d 1113, 1114, 757 N.Y.S.2d 921).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: