IN RE: Carlos DIAZ (2025)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Queens County (Mildred T. Negron, J.), dated June 26, 2024.  The order, after a hearing, denied the father's petition to modify a so-ordered stipulation of settlement dated January 23, 2017, so as to award him sole legal and residential custody of the parties' children.

ORDERED that the order is affirmed, without costs or disbursements.

The parties have two children together, born in 2013 and 2015, respectively.  In a so-ordered stipulation of settlement dated January 23, 2017 (hereinafter the stipulation), the parties agreed that the mother would have sole custody of the children, with certain parental access to the father.  In 2021, the father filed a petition to modify the stipulation so as to award him sole legal and residential custody of the children.  After a hearing, the Family Court denied the father's petition.  The father appeals.

“Modification of a court-approved stipulation setting forth the terms of custody or parental access is permissible only upon a showing that there has been a sufficient change in circumstances such that modification is necessary to ensure the best interests and welfare of the child” (Matter of Burke v. Squires, 202 A.D.3d 784, 785, 162 N.Y.S.3d 434;  see Matter of Fiore v. Gima, 227 A.D.3d 1071, 1073, 213 N.Y.S.3d 109).  “The paramount concern when making such a determination is the best interests of the child under the totality of the circumstances” (Matter of Shepherd v. Mirukaj, 235 A.D.3d 769, 770, 226 N.Y.S.3d 595;  see Eschbach v. Eschbach, 56 N.Y.2d 167, 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260).  “Since the Family Court's determination with respect to custody and parental access depends to a great extent upon its assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parties, its findings are generally accorded great deference and will not be disturbed unless they lack a sound and substantial basis in the record” (Matter of Freyer v. Macruari, 234 A.D.3d 755, 756, 224 N.Y.S.3d 564 [internal quotation marks omitted];  see Matter of Watling v. Watling, 236 A.D.3d 1047, 1048, 229 N.Y.S.3d 632).

Here, the Family Court's determination to deny the father's petition to modify the stipulation so as to award him sole legal and residential custody of the children is supported by a sound and substantial basis in the record (see Matter of Reggie P. v. Heather D., 239 A.D.3d 861, 861–862, 234 N.Y.S.3d 291).  Although there was evidence that the mother engaged in conduct that interfered with the father's relationship with the children, and this conduct should not be condoned, the totality of the circumstances provided a sound and substantial basis for the court's determination that it was in the best interests of the children to remain in the sole legal and residential custody of the mother (see Matter of Brisard v. Brisard, 211 A.D.3d 838, 839, 179 N.Y.S.3d 765;  Matter of Brown v. Simon, 195 A.D.3d 806, 821–822, 151 N.Y.S.3d 71).  The evidence presented at the hearing established, among other things, that the mother had been the children's primary caretaker since birth, that she was responsible for their medical and educational needs, and that the children had very close relationship with the mother and were doing well in her care (see Matter of Miller v. Perez, 232 A.D.3d 898, 899, 220 N.Y.S.3d 835;  Matter of Martinez v. Driscoll, 209 A.D.3d 653, 655, 175 N.Y.S.3d 334).  Moreover, the court, having the benefit of observing and listening to the witnesses, credited the mother's testimony on the issue of domestic violence perpetrated by the father against the mother in the children's presence (see Matter of Bell v. Pierre, 239 A.D.3d 973, 975, 234 N.Y.S.3d 619;  Matter of Ravello v. Ravello, 187 A.D.3d 1021, 1022, 131 N.Y.S.3d 200).

Accordingly, the Family Court properly denied the father's petition to modify the stipulation so as to award him sole legal and residential custody of the children.

DUFFY, J.P., MILLER, WARHIT and LOVE, JJ., concur.