IN RE: Damian GILMARTIN

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

IN RE: Damian GILMARTIN, respondent, v. Lisa ABBAS, appellant.

Decided: March 31, 2009

PETER B. SKELOS, J.P., MARK C. DILLON, JOSEPH COVELLO, and JOHN M. LEVENTHAL, JJ. Jeffrey C. Bluth, Brooklyn, N.Y., for appellant. Rick Stein, Brooklyn, N.Y., for respondent.

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Kings County (Pearl, J.), dated January 23, 2008, which, after a hearing, granted the father's petition to modify a prior custody order of the same court dated July 2, 2004, awarding her sole custody of the parties' child, and awarded him sole custody of the subject child.

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

 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 (see Matter of Brian S. v. Stephanie P., 34 A.D.3d 685, 686, 825 N.Y.S.2d 232;  Matter of James v. Hickey, 6 A.D.3d 536, 537, 774 N.Y.S.2d 407).   A determination of custody should not be set aside unless it lacks a sound and substantial basis in the record (see Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260).   A court, in considering questions of child custody, must determine what is in the best interests of the child (see Domestic Relations Law § 70[a];  Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260).

 The hearing court may order a change in custody if the totality of the circumstances warrants a modification in 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;  Matter of Brian S. v. Stephanie P., 34 A.D.3d 685, 686, 825 N.Y.S.2d 232).   The Family Court's determination that the best interests of the child would be served by a change of custody to the father is supported by a sound and substantial basis in the record and should not be disturbed (see Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  Matter of Timosa v. Chase, 21 A.D.3d 1115, 1116, 803 N.Y.S.2d 575).

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