IN RE: Otis MURRAY

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Otis MURRAY, Respondent, v. Cheryl HALL, Appellant.

Decided: May 20, 2002

FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, SONDRA MILLER and LEO F. McGINITY, JJ. Peter Dailey, New York, NY, for appellant. Bernstein & Jaffe, Brooklyn, N.Y. (Steven C. Bernstein of counsel), for respondent. Ira H. Goldstein, Brooklyn, NY, Law Guardian for the child.

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, Kings County (Elkins, J.), dated January 5, 1999, as denied her petition to modify a prior order of the same court (Burstein, J.), dated March 3, 1993, awarding custody of the subject child to the father.

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

 It is well settled that custody determinations are ordinarily a matter of discretion for the hearing court (see Gage v. Gage, 167 A.D.2d 332, 561 N.Y.S.2d 299).   With respect to any determination as to a change of custody, the paramount consideration must be the best interests of the child (see Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 447 N.Y.S.2d 893, 432 N.E.2d 765).   Among the factors to be considered are the quality of the home environment and the parental guidance the custodial parent provides for the child (see Eschbach v. Eschbach, supra at 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  Matter of Ebert v. Ebert, 38 N.Y.2d 700, 702, 382 N.Y.S.2d 472, 346 N.E.2d 240), the ability of each parent to provide for the child's emotional and intellectual development (see Porges v. Porges, 63 A.D.2d 712, 713, 405 N.Y.S.2d 115), the financial status and ability of each parent to provide for the child (see Eschbach v. Eschbach, supra), the relative fitness of the respective parents, and the length of time the present custody arrangement has been in effect (see Matter of Nehra v. Uhlar, 43 N.Y.2d 242, 401 N.Y.S.2d 168, 372 N.E.2d 4).   Priority in custody disputes usually should be given to the parent who was first awarded custody by the court or to the parent who obtained custody by voluntary agreement (see Robert C.R. v. Victoria R., 143 A.D.2d 262, 264, 532 N.Y.S.2d 176;  Richman v. Richman, 104 A.D.2d 934, 935, 480 N.Y.S.2d 551;  see also Friederwitzer v. Friederwitzer, supra at 94, 447 N.Y.S.2d 893, 432 N.E.2d 765).   Furthermore, the courts will not disrupt sibling relationships unless there is an overwhelming need to do so (see Eschbach v. Eschbach, supra at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  Matter of Ebert v. Ebert, supra at 704, 382 N.Y.S.2d 472, 346 N.E.2d 240).

 A review of the Family Court's decision indicates that it gave careful consideration to the above factors.   The award of custody of the subject child to the father has a sound basis in the record.   The subject child has resided with his father since shortly after his birth.   Moreover, this custody arrangement is in accordance with the court-appointed expert's opinion.   Contrary to the mother's contention, the parties' two children have never resided together and, under the circumstances of this case, there is no reason to disrupt the stability and continuity of the present situation (see Klat v. Klat, 176 A.D.2d 922, 575 N.Y.S.2d 536;  Schussler v. Schussler, 109 A.D.2d 875, 487 N.Y.S.2d 67).

The mother's remaining contentions are without merit.

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