IN RE: Katie GEORGIOU–ELY (2020)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Nassau County (Eileen Daly–Sapraicone, J.), dated December 31, 2018. The order, after a hearing, dismissed the mother's petition to modify a prior order of the same court dated July 24, 2015 (Edmund M. Dane, J.), so as to award her sole legal and physical custody of the parties' children and to require that the father's parental access with the children be supervised.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, without costs or disbursements, the mother's petition to modify a prior order of the same court dated July 24, 2015, so as to award her sole legal and physical custody of the parties' children and to require that the father's parental access with the children be supervised is granted, and the matter is remitted to the Family Court, Nassau County, to establish an appropriate supervised parental access schedule for the father that is in the best interests of the children.

The parties are the parents of two children, born in 2005 and 2007, respectively. Pursuant to an order dated July 24, 2015, entered upon consent (hereinafter the custody order), the parties were awarded joint legal custody of the children with residential custody to the mother, and unsupervised parental access to the father. In July 2017, the mother petitioned the Family Court to modify the custody order so as to award her sole legal and physical custody of the children and to require that the father's parental access with the children be supervised. The court held a hearing on the mother's petition, at which the father failed to appear. At the conclusion of the hearing, the court dismissed the petition. The mother appeals.

An order of custody or parental access may be modified only upon a showing that there has been a subsequent change of circumstances such that modification is required to protect the best interests of the child (see Matter of Farouz v. Faltas, 179 A.D.3d 1064, 1065, 118 N.Y.S.3d 639; Matter of Liriano v. Hotaki, 176 A.D.3d 710, 710–711, 113 N.Y.S.3d 209). The best interests of the child are determined by a review of the totality of the circumstances (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Matter of Gonzalez v. Santiago, 167 A.D.3d 885, 887, 90 N.Y.S.3d 137). “Although the determination of the hearing court which saw and heard the witnesses is entitled to great deference, its determination will not be upheld where it lacks a sound and substantial basis in the record” (Matter of Sparacio v. Fitzgerald, 73 A.D.3d 790, 791, 899 N.Y.S.2d 640; see Matter of Burke v. Cogan, 122 A.D.3d 625, 626, 997 N.Y.S.2d 141).

Here, the Family Court's determination, in effect, that there had been no change in circumstances requiring a transfer of legal custody to the mother and a modification of the father's parental access lacks a sound and substantial basis in the record (see Matter of Errante v. Murry, 172 A.D.3d 711, 713, 99 N.Y.S.3d 379). The record reflects that the children's relationship with the father has deteriorated since the issuance of the custody order (see Matter of Burke v. Cogan, 122 A.D.3d 625, 626, 997 N.Y.S.2d 141), that the father had threatened to strike the children with a belt, and that the father denigrated the mother in the presence of the children (see Matter of Zeis v. Slater, 57 A.D.3d 793, 794, 870 N.Y.S.2d 387). Moreover, the children, who were 11 and 13 years old at the time of the hearing, indicated a strong preference to reside with the mother (see Matter of Burke v. Cogan, 122 A.D.3d at 626, 997 N.Y.S.2d 141; Matter of Dorsa v. Dorsa, 90 A.D.3d 1046, 1047, 935 N.Y.S.2d 343).

Furthermore, the record indicates that unsupervised parental access with the father would be detrimental to the children at this time (see Matter of Masri v. Masri, 171 A.D.3d 1183, 1185, 99 N.Y.S.3d 61).

Accordingly, the Family Court should have granted the mother's petition to modify the custody order so as to award her sole legal and physical custody of the parties' children and to require that the father's parental access with the children be supervised.

In light of our determination, we need not reach the mother's remaining contentions.

LEVENTHAL, J.P., ROMAN, COHEN and MILLER, JJ., concur.