IN RE: David J. FISHER (2025)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Putnam County (Anthony R. Molé, J.), entered October 7, 2024.  The order, after a hearing, denied the father's petition to modify an order of the same court dated December 22, 2016, so as to award him primary physical custody of the child.

ORDERED that the order entered October 7, 2024, is affirmed, without costs or disbursements.

The parties were married in 2008 and divorced in 2016.  They are the parents of a child born in 2014.  Pursuant to a mediation agreement dated December 19, 2016, the parties agreed to share joint legal custody of the child and that the mother would have primary physical custody of the child.  In an order dated December 22, 2016, the mediation agreement was entered as an order of the Family Court (hereinafter the custody order).

On February 28, 2024, the father commenced this proceeding to modify the custody order so as to award him primary physical custody of the child.  In an order entered October 7, 2024, after a hearing, the Family Court determined that the father made the requisite evidentiary showing of a change in circumstances.  However, after engaging in a best interest analysis, the court denied the father's request to modify the custody order so as to award him primary physical custody of the child.  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 Miller v. Norton, 237 A.D.3d 711, 713, 230 N.Y.S.3d 692 [internal quotation marks omitted];  see Matter of Saliba v. Melvin, 227 A.D.3d 913, 914, 212 N.Y.S.3d 368).  “[T]he paramount concern when making such a determination is the best interests of the child under the totality of the circumstances” (Matter of Narine v. Singh, 229 A.D.3d 700, 701, 216 N.Y.S.3d 38 [internal quotation marks omitted];  see Matter of Mahoney v. Hughes, 227 A.D.3d 908, 909, 212 N.Y.S.3d 145).  “When deciding whether a modification is in a child's best interests, factors to be considered include the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent” (Matter of Narine v. Singh, 229 A.D.3d at 701, 216 N.Y.S.3d 38 [internal quotation marks omitted];  see Matter of Pierce v. Caputo, 214 A.D.3d 877, 878, 185 N.Y.S.3d 283).  “Stability and continuity in a child's life are [also] important factors, as are the child's wishes, which become more important as a child ages and matures” (Matter of Nathaniel v. Mauvais, 234 A.D.3d 766, 768, 225 N.Y.S.3d 332 [internal quotation marks omitted];  see Matter of Morales v. Diaz, 233 A.D.3d 1033, 1036, 224 N.Y.S.3d 488).  Notably, “the existence or absence of any one factor cannot be determinative on appellate review since the court is to consider the totality of the circumstances” (Eschbach v. Eschbach, 56 N.Y.2d 167, 174, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  see Matter of Moses v. Williams, 138 A.D.3d 861, 861, 29 N.Y.S.3d 493).

Pursuant to Domestic Relations Law § 240(1)(a), “in any action or proceeding concerning custody or parental access where domestic violence is alleged, the court must consider the effect of such domestic violence upon the best interests of the child ․ when the allegations of domestic violence are proven by a preponderance of the evidence” (Matter of Scott v. Thompson, 166 A.D.3d 627, 628, 87 N.Y.S.3d 211 [citations omitted];  see Matter of Robert C. v. Katlyn D., 230 A.D.3d 1392, 1394, 219 N.Y.S.3d 206).

“Since custody determinations depend to a great extent upon the trial court's assessment of the character and credibility of the parties and witnesses, deference is accorded to that court's credibility findings” (Cicale v. Cicale, 231 A.D.3d 705, 706, 219 N.Y.S.3d 397 [internal quotation marks omitted];  see Matter of Frankiv v. Kalitka, 105 A.D.3d 1045, 1046, 963 N.Y.S.2d 393).  Accordingly, “the custody and parental access determinations of the trial court will not be disturbed unless they lack a sound and substantial basis in the record” (Cicale v. Cicale, 231 A.D.3d at 706, 219 N.Y.S.3d 397 [internal quotation marks omitted];  see Matter of Frankiv v. Kalitka, 105 A.D.3d at 1046, 963 N.Y.S.2d 393).

Here, there is no dispute that the father demonstrated the requisite change in circumstances by adducing evidence of the mother's DWI arrests (see Matter of Richard EE. v. Mandy FF., 189 A.D.3d 1992, 1993, 137 N.Y.S.3d 831;  Matter of LeVar P. v. Sherry Q., 181 A.D.3d 1008, 1009, 120 N.Y.S.3d 514).

The Family Court's determination that the father failed to demonstrate that a change in custody was in the child's best interests was supported by a sound and substantial basis in the record.  Accepting the court's credibility determinations, the father failed to demonstrate by a preponderance of the evidence that incidents of domestic violence took place in the mother's home (see Matter of Rolon v. Medina, 56 A.D.3d 676, 677, 868 N.Y.S.2d 226).  Further, the evidence adduced at the hearing demonstrated, among other things, that the mother had been the child's primary caregiver since 2016 (see Matter of Recher v. Velez, 143 A.D.3d 828, 829, 38 N.Y.S.3d 811), provided a better quality of home environment for the child (see e.g. Matter of Satema C. v. Stephen D., 221 A.D.3d 1304, 1306, 200 N.Y.S.3d 184;  Matter of Mathena XX. v. Brandon YY., 189 A.D.3d 1733, 1736, 136 N.Y.S.3d 542;  Matter of Reyes v. Gill, 119 A.D.3d 804, 805, 989 N.Y.S.2d 139), and was better suited to promote stability in the child's life (see Matter of Acevedo v. Cassidy, 236 A.D.3d 645, 647, 228 N.Y.S.3d 654;  Matter of O'Neil v. O'Neil, 132 A.D.3d 680, 681, 17 N.Y.S.3d 187).

Accordingly, the Family Court properly denied the father's petition to modify the custody order so as to award him primary physical custody of the child.

BARROS, J.P., CHAMBERS, WAN and QUIRK, JJ., concur.