IN RE: Jean Paul SALIBA (2024)

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (Frank A. Tantone, J.), dated February 10, 2023.  The order, insofar as appealed from, after a hearing, denied that branch of the father's petition which was to modify an order of the same court dated February 2, 2021, so as to award him sole residential custody of the parties’ two youngest children, granted the mother's petition, in effect, to modify the order dated February 2, 2021, inter alia, so as to award her sole legal and residential custody of the parties’ two youngest children, and awarded the mother certain final decision-making authority with respect to those children and only certain parental access to the father.

ORDERED that the order dated February 10, 2023, is affirmed insofar as appealed from, without costs or disbursements.

The parties have three children together, born in 2006, 2010, and 2011, respectively.  In 2013, the parties entered into a so-ordered stipulation of settlement, pursuant to which they agreed, among other things, to share joint legal custody of the children, that the mother would have primary residential custody of the children, and that the father would have parental access.  The so-ordered stipulation of settlement was modified on consent of the parties pursuant to an order dated February 2, 2021 (hereinafter the prior order).  The prior order, inter alia, changed the father's parental access schedule with the children from three weekends per month to alternating weekends.  On February 5, 2021, the father filed a petition to modify the prior order, among other things, so as to award him sole residential custody of the parties’ two youngest children (hereinafter the subject children).  On September 19, 2022, the mother filed a petition, in effect, to modify the prior order so as to award her sole legal and residential custody of the subject children and to change the father's parental access.  After a hearing, the Family Court, inter alia, denied that branch of the father's petition which was to modify the prior order so as to award him sole residential custody of the subject children, granted the mother's petition, and awarded the mother certain final decision-making authority and only certain parental access to the father.  The father appeals.

“In order to modify an existing court-ordered custody arrangement, there must be a showing of a subsequent change in circumstances so that modification is required to protect the best interests of the child” (Matter of Cook v. Perez, 215 A.D.3d 960, 962, 188 N.Y.S.3d 128 [internal quotation marks omitted];  see Matter of Epstein v. Soler–Epstein, 188 A.D.3d 1052, 1053, 135 N.Y.S.3d 445).  The best interests of the child must be determined by reviewing the totality of the circumstances (see Eschbach v. Eschbach, 56 N.Y.2d 167, 174, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  Matter of Pierce v. Caputo, 214 A.D.3d 877, 878, 185 N.Y.S.3d 283;  Matter of Burke v. Squires, 202 A.D.3d 784, 786, 162 N.Y.S.3d 434).  “[A] child's expressed preference, while not determinative, may ․ be indicative of the child's best interests” (Matter of Miller v. Shaw, 160 A.D.3d 743, 744, 74 N.Y.S.3d 70).

Here, the Family Court's determination has a sound and substantial basis in the record and therefore should not be disturbed (see Matter of Kim v. Becker, 223 A.D.3d 813, 815, 204 N.Y.S.3d 152;  Matter of Patten v. Patten, 206 A.D.3d 811, 812, 170 N.Y.S.3d 183).

IANNACCI, J.P., FORD, TAYLOR and LOVE, JJ., concur.