IN RE: Rodolfo GUERRA (2008)

In related child custody proceedings pursuant to Family Court Act article 6, the father appeals, as limited by his brief, from so much of an order of the Family Court, Queens County (Seiden, Ct. Atty. Ref.), dated August 7, 2006, as, after a hearing, in effect, denied his petition to modify an order of the Family Court, Nassau County (Pessala, J.), dated July 31, 2003, inter alia, awarding the mother sole custody of the parties' child.

ORDERED that the order dated August 7, 2006, is affirmed insofar as appealed from, without costs or disbursements.

 “Modification of an existing custody arrangement is permissible only upon a showing that there has been a change in circumstances such that modification is necessary to ensure the best interests of the child.   The court must consider the totality of the circumstances” (Matter of Strand-O'Shea v. O'Shea, 32 A.D.3d 398, 819 N.Y.S.2d 109;  see Eschbach v. Eschbach, 56 N.Y.2d 167, 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  Matter of Fallarino v. Ayala, 41 A.D.3d 714, 714-715, 838 N.Y.S.2d 176).  “Since custody determinations depend 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” (Matter of Conforti v. Conforti, 46 A.D.3d 877, 877, 848 N.Y.S.2d 359;  see Eschbach v. Eschbach, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260).

In the instant case, the mother and the father both filed petitions in the Family Court, Nassau County, seeking custody of their child.   The father withdrew his petition, and on July 31, 2003, the court granted the mother's petition without conducting an evidentiary hearing.   On October 23, 2003, the father filed a petition in the Family Court, Queens County, seeking modification of the Nassau County order to award him custody of the child.   After a full evidentiary hearing in the Family Court, Queens County, that court denied the father's petition.

 The father failed to present evidence of a change in circumstances during the three-month period between the granting of the mother's custody petition in Nassau County and his petition for modification in Queens County sufficient to warrant a change in custody (see Matter of Fallarino v. Ayala, 41 A.D.3d at 715, 838 N.Y.S.2d 176).   Moreover, the testimony and recommendations of the forensic examiner and the child's therapist that a change in custody would be detrimental to the well-being of the child were uncontradicted by the record and properly credited by the Family Court (see Matter of Muller v. Muller, 221 A.D.2d 635, 636, 634 N.Y.S.2d 190).   The court's determination that a change in custody would not be in the child's best interests was based upon consideration of the totality of the circumstances and had a sound and substantial basis in the record (see Eschbach v. Eschbach, 56 N.Y.2d at 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260).