IN RE: Andrzej TERCJAK (2008)

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from so much of an order of the Family Court, Queens County (Rood, R.), dated January 23, 2007, as granted the father's motion for a change in custody of the parties' two children.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 An agreement between parents concerning custody will not be set aside unless there is a sufficient change in circumstances since the time of the agreement and unless the modification of the custody agreement is in the best interests of the child (see Pambianchi v. Goldberg, 35 A.D.3d 688, 689, 827 N.Y.S.2d 225).   As a custody determination depends to a great extent upon an assessment of the character and credibility of the parties and witnesses, the findings of the Family Court will not be disturbed unless they lack a sound and substantial basis in the record (see Eschbach v. Eschbach, 56 N.Y.2d 167, 174, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  Matter of Honeywell v. Honeywell, 39 A.D.3d 857, 858, 835 N.Y.S.2d 327;  Kuncman v. Kuncman, 188 A.D.2d 517, 518, 591 N.Y.S.2d 349).   Here, there is a sound and substantial basis in the record for the Family Court's award of sole physical and legal custody to the father (see Eschbach v. Eschbach, 56 N.Y.2d 167, 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  Vinciguerra v. Vinciguerra, 294 A.D.2d 565, 566, 743 N.Y.S.2d 139).

 Although the Family Court improvidently exercised its discretion in admitting into evidence the report of the neutral forensic psychologist, since the report was not submitted under oath (see 22 NYCRR 202.16 [g][2] ) and relied on information other than that upon which an expert may properly base an opinion (see Matter of D'Esposito v. Kepler, 14 A.D.3d 509, 788 N.Y.S.2d 169), the error in admitting the report was harmless.   There is a sound and substantial basis in the record for the Family Court's determination without consideration of the improperly admitted report (see Matter of D'Esposito v. Kepler, 14 A.D.3d 509, 788 N.Y.S.2d 169).

The mother's remaining contentions are without merit.