SCHIMMEL v. SCHIMMEL (1999)

 “The court's determination regarding custody * * *, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record (see, Paul G. v. Donna G., 175 A.D.2d 236, 237, 572 N.Y.S.2d 364;  D'Errico v. D'Errico, 158 A.D.2d 503, 504, 551 N.Y.S.2d 266;  Lenczycki v. Lenczycki, 152 A.D.2d 621, 623, 543 N.Y.S.2d 724)” (Matter of Samuel L.J. v. Sherry H., 206 A.D.2d 886, 616 N.Y.S.2d 312, lv. denied 84 N.Y.2d 810, 621 N.Y.S.2d 520, 645 N.E.2d 1220).  The record supports Family Court's determination that the best interests of the children will be served by awarding primary placement to respondent.   Contrary to petitioner's contention, the court was not required in this proceeding to accord great weight to the preexisting custodial arrangement (cf., Matter of King v. King, 216 A.D.2d 962, 963, 629 N.Y.S.2d 158).   Both parties filed petitions seeking modification of that arrangement because it was not suited to the older child's attendance at school.   Thus, the parties did not dispute that there was “a sufficient change in circumstances demonstrating a real need for a change in order to insure” the children's best interests (Matter of Kamholtz v. Kovary, 210 A.D.2d 813, 814, 620 N.Y.S.2d 576).   The court properly considered and weighed the appropriate factors (see, Eschbach v. Eschbach, 56 N.Y.2d 167, 172-173, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  Matter of Paul C. v. Tracy C., 209 A.D.2d 955, 956, 622 N.Y.S.2d 159), and the change made to the preexisting custodial arrangement has a sound and substantial basis in the record (see, Matter of Taber v. Taylor, 238 A.D.2d 696, 697, 656 N.Y.S.2d 408).

We reject the contention of petitioner that she was denied her right to effective assistance of counsel.  “Viewed in its totality, the record reveals that petitioner was provided with meaningful and constitutionally competent legal representation” (Matter of Dingman v. Purdy, 221 A.D.2d 817, 818, 633 N.Y.S.2d 682).

Order unanimously affirmed without costs.

MEMORANDUM: