IN RE: Loxley MULLINGS

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

IN RE: Loxley MULLINGS, respondent, v. Codean FOSTER, appellant.

Decided: May 29, 2007

ROBERT W. SCHMIDT, J.P., GLORIA GOLDSTEIN, DANIEL D. ANGIOLILLO, and WILLIAM E. McCARTHY, JJ. Steven P. Forbes, Jamaica, N.Y., for appellant. Joseph R. Faraguna, Sag Harbor, N.Y., for respondent. Christian P. Myrill, Jamaica, N.Y., Law Guardian for the children.

In a child custody and visitation proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Queens County (Heffernan, J.), dated February 24, 2006, which, after a hearing, inter alia, awarded sole custody of the subject children to the father.

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

 “The essential consideration in a custody determination is to promote the best interests of the child” (Matter of Kozlowski v. Mangialino, 36 A.D.3d 916, 830 N.Y.S.2d 557;  see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  Matter of Magwood v. Martinez, 35 A.D.3d 743, 743-744, 827 N.Y.S.2d 243;  Allain v. Allain, 35 A.D.3d 513, 513, 826 N.Y.S.2d 411).  “In determining the best interests of the child, the court must review the ‘totality of the circumstances' ” (Matter of Blanco v. Corbett, 8 A.D.3d 374, 374, 777 N.Y.S.2d 735, quoting Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95, 447 N.Y.S.2d 893, 432 N.E.2d 765).  “Since the Family Court's custody determination is largely dependent upon an assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parents, its determination should not be disturbed unless it lacks a sound and substantial basis in the record” (Matter of Kozlowski v. Mangialino, supra at 917, 830 N.Y.S.2d 557, quoting Matter of Plaza v. Plaza, 305 A.D.2d 607, 607, 759 N.Y.S.2d 368;  see Matter of Louise E.S. v. W. Stephen S., 64 N.Y.2d 946, 947, 488 N.Y.S.2d 637, 477 N.E.2d 1091;  Matter of Adams v. Perryman, 35 A.D.3d 852, 853, 826 N.Y.S.2d 442;  Matter of Magwood v. Martinez, supra at 744, 827 N.Y.S.2d 243;  Pambianchi v. Goldberg, 35 A.D.3d 688, 689, 827 N.Y.S.2d 225;  Allain v. Allain, supra at 513-514, 826 N.Y.S.2d 411;  Blanco v. Corbett, supra at 374, 777 N.Y.S.2d 735).

 The record supports the Family Court's determination that there was a substantial change of circumstances, specifically the mother's relocation to Hartford, Connecticut, and her subsequent failure to make her current home available for a home study or to produce her new husband for assessment by the forensic evaluator so as to enable the court to properly evaluate the children's home environment.   We discern no basis to disturb the Family Court's determination, made after a hearing, that it was in the subject children's best interest to award sole custody of the subject children to the father and award the mother visitation (see Matter of Magwood v. Martinez, supra at 744, 827 N.Y.S.2d 243;  see also Matter of Held v. Gomez, 35 A.D.3d 608, 608, 824 N.Y.S.2d 741).

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