IN RE: RUTH M. CHAPPELL (2011)

MEMORANDUM AND ORDER

JASON J. BOWMAN, ATTORNEY FOR THE CHILD, ONTARIO, FOR RICHARD D.

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

Memorandum:  Respondent father appeals from an order modifying the prior judgment of divorce by awarding primary physical custody of the parties' child to petitioner mother and visitation to the father.   We conclude at the outset that Family Court had jurisdiction over this proceeding because the initial custody determination was made by a court of this State, i.e., Supreme Court, as part of the judgment of divorce (see Domestic Relations Law § 76-a [1] ).   We further conclude that the exceptions set forth in Domestic Relations Law § 76-a (1) do not apply under the circumstances here.   Contrary to the father's contention, the court was not required to decline to exercise its jurisdiction based on any unjustifiable conduct of the mother (see § 76-g [1] ).

With respect to the merits, we conclude that the court was in the best position to evaluate the character and credibility of the witnesses, and we accord great weight to the court's determination regarding custody (see Matter of Paul C. v. Tracy C., 209 A.D.2d 955).   The court weighed the appropriate factors in determining that modification of the judgment by awarding primary physical custody to the mother was in the best interests of the child, and that determination has a sound and substantial basis in the record (see Matter of Jones v. Houck, 280 A.D.2d 969).

Patricia L. Morgan

Clerk of the Court