IN RE: Bervine HARRIS (2009)

In related child custody proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Nassau County (Eisman, J.), dated April 10, 2008, which, after a hearing, granted the father's petition to modify certain custody provisions of the parties' judgment of divorce entered January 5, 2005, awarding the mother sole legal and physical custody of the parties' three children, so as to award him sole legal and physical custody of the subject children.

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

 In order to modify an existing custody arrangement, there must be a showing of a subsequent change of circumstances such that modification is required to protect the best interests of the child (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  Pambianchi v. Goldberg, 35 A.D.3d 688, 689, 827 N.Y.S.2d 225;  Matter of Strand-O'Shea v. O'Shea, 32 A.D.3d 398, 398, 819 N.Y.S.2d 109;  Scheuering v. Scheuering, 27 A.D.3d 446, 447, 811 N.Y.S.2d 100).  “Custody determinations depend to a great extent upon the hearing court's assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties” (Matter of McGee v. Patron, 58 A.D.3d 633, 633, 869 N.Y.S.2d 917;  see Matter of Brian S. v. Stephanie P., 34 A.D.3d 685, 686, 825 N.Y.S.2d 232), and a custody determination should not be set aside unless it lacks a sound and substantial basis in the record (see Matter of Rodriguez v. Irizarry, 29 A.D.3d 704, 704, 814 N.Y.S.2d 273;  Neuman v. Neuman, 19 A.D.3d 383, 384, 796 N.Y.S.2d 403).

 Here, the record supports the Family Court's determination that a change in circumstances had occurred since the issuance of the last custody and visitation order based upon the evidence of the subject children's academic difficulties, which the mother failed to properly address, their significant behavioral problems, and the mother's inability to provide proper supervision of the children (see Matter of Hagans v. Harden, 12 A.D.3d 972, 973, 785 N.Y.S.2d 173;  Matter of Ortiz v. Maharaj, 8 A.D.3d 574, 574, 779 N.Y.S.2d 220;  see also Matter of Dow v. Dow, 306 A.D.2d 529, 530-531, 761 N.Y.S.2d 682).

Additionally, the Family Court's determination that it was in the children's best interests to transfer custody of the children to the father is supported by a sound and substantial basis in the record and should not be disturbed (see Matter of McGee v. Patron, 58 A.D.3d at 633, 869 N.Y.S.2d 917;  Matter of Brian S. v. Stephanie P., 34 A.D.3d at 686, 825 N.Y.S.2d 232).