IN RE: William R. LIGHTBODY

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

IN RE: William R. LIGHTBODY, respondent, v. Irene LIGHTBODY, appellant.

Decided: July 24, 2007

ROBERT A. SPOLZINO, J.P., PETER B. SKELOS, ROBERT A. LIFSON, and RUTH C. BALKIN, JJ. Joseph J. Artrip, New Windsor, N.Y., for appellant. Rametta & Rametta, LLC, Goshen, N.Y. (Robert M. Rametta of counsel), for respondent. Neal D. Futerfas, White Plains, N.Y., Law Guardian for the children.

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Orange County (Currier-Woods, J.), dated May 9, 2006, which, after a hearing, awarded physical custody of the subject children to the father.

ORDERED that the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof awarding physical custody of the minor child Alliana to the father, and substituting therefor a provision awarding physical custody of Alliana to the mother;  as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Orange County, for determination of an appropriate visitation schedule for the father with Alliana.

 A determination by the Family Court with respect to child custody should be accorded great deference on appeal, since the Family Court had the opportunity to assess the witnesses' demeanor and credibility (see Matter of Lobo v. Muttee, 196 A.D.2d 585, 587, 601 N.Y.S.2d 322;  Matter of Krebsbach v. Gallagher, 181 A.D.2d 363, 364, 587 N.Y.S.2d 346).   Nevertheless, the authority of this court is as broad as that of the hearing court (see Matter of Louise E.S. v. W. Stephen S., 64 N.Y.2d 946, 488 N.Y.S.2d 637, 477 N.E.2d 1091), and a custody determination must not stand if it lacks a sound and substantial basis in the record (see Matter of Sullivan v. Sullivan, 190 A.D.2d 852, 854, 594 N.Y.S.2d 276;  Matter of Lobo v. Muttee, supra;  Matter of Krebsbach v. Gallagher, supra ).   Here, the evidence does not support the Family Court's determination to award physical custody of Alliana to the father.

 A change in custody should be made only if the totality of the circumstances warrants a change that is in 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;  Matter of Krebsbach v. Gallagher, supra ).   Along with the factors considered in any custody determination, the court must also consider the stability and continuity afforded by maintaining the present arrangement (see Eschbach v. Eschbach, supra;  Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 94, 447 N.Y.S.2d 893, 432 N.E.2d 765;  Matter of Paul Seth G. v. Antoinette M., 227 A.D.2d 620, 643 N.Y.S.2d 592;  Matter of Krebsbach v. Gallagher, supra ).

Here, it is in Alliana's best interests that the mother retain physical custody of her (see Matter of Morgan v. Becker, 245 A.D.2d 889, 666 N.Y.S.2d 820;  Matter of Brown v. Brown, 236 A.D.2d 611, 654 N.Y.S.2d 679).   The mother testified to the extensive arrangements she had made for Alliana's care, including the fact that Alliana attended the parochial school on the campus where the mother worked.   Further, prior to separating, the parties had agreed that the mother was to care for Alliana and that Alliana would reside with the mother.   The parties also agreed that their other minor child, Andrew, would continue to reside with the father at the marital residence, since Andrew had expressed a desire to remain in the same school and extracurricular programs as his friends.   While courts should be reluctant to separate siblings (see Eschbach v. Eschbach, supra, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260), there are circumstances in which “the best interests of each child lies with a different parent” (Wurm v. Wurm, 87 A.D.2d 590, 591, 447 N.Y.S.2d 758;  see Matter of Delafrange v. Delafrange, 24 A.D.3d 1044, 806 N.Y.S.2d 769;  Matter of Maher v. Maher, 1 A.D.3d 987, 767 N.Y.S.2d 179;  Mitzner v. Mitzner, 209 A.D.2d 487, 619 N.Y.S.2d 51;  Matter of Johnson v. Johnson, 202 A.D.2d 584, 609 N.Y.S.2d 81;  Klat v. Klat, 176 A.D.2d 922, 923-924, 575 N.Y.S.2d 536;  Matter of Bilodeau v. Bilodeau, 161 A.D.2d 906, 907, 557 N.Y.S.2d 471).   It is in Alliana's best interests that she continue to benefit from the stability and structure of the home provided by her mother, who has been her primary caregiver since birth.   The Family Court's determination to the contrary lacks a substantial basis in the record.

The mother's remaining contentions are without merit.

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