IN RE: Michael Buxenbaum

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

IN RE: Michael Buxenbaum, Jr., respondent, v. Rachel Fulmer, appellant.

2009–11663 2010–02171 (Docket No. V–17775–07)

Decided: March 29, 2011

ANITA R. FLORIO, J.P. THOMAS A. DICKERSON JOHN M. LEVENTHAL ARIEL E. BELEN, JJ. Judith Ellen Stone, Merrick, N.Y., for appellant. Karen M. Caggiano, Shirley, N.Y., for respondent. Robert D. Gallo, Sayville, N.Y., attorney for the child.

Argued—March 10, 2011

DECISION & ORDER

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from (1) an order of the Family Court, Suffolk County (Lechtrecker, Ct.Atty.Ref.), dated November 20, 2009, which, after a hearing, granted the father's petition to modify a prior order of custody and visitation dated January 28, 2008, so as to award him sole legal custody of the subject child, and (2) an order of the same court dated February 2, 2010, which, upon setting forth conditions of visitation, inter alia, prohibited her from telling the child that any man other than the father is the child's biological father.

ORDERED that the orders are affirmed, with one bill of costs.

“Modification of an existing custody arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child” (Matter of Pignataro v. Davis, 8 AD3d 487, 488;  see Eschbach v. Eschbach, 56 N.Y.2d 167, 171;  Matter of Deochand v. Deochand, 80 AD3d 609).   The best interests of the child are determined by a review of the totality of the circumstances (see Matter of Skeete v. Hamilton, 78 AD3d 1187, 1188).   As a custody determination depends to a great extent upon an assessment of the character and credibility of the parties and witnesses, the findings of the Family Court will not be disturbed unless they lack a sound and substantial basis in the record (see Matter of Reed v. Clemons, 79 AD3d 1044;  Matter of Tercjak v. Tercjak, 49 AD3d 772).

Here, the Family Court's determination that there had been a change in circumstances since the issuance of the prior order of custody and visitation dated January 28, 2008, and that it was in the child's best interests to award sole custody to the father, is supported by a sound and substantial basis in the record (see Matter of Reed v. Clemons, 79 AD3d at 1044;  Matter of Skeete v. Hamilton, 78 AD3d at 1187).   Moreover, the Family Court's determination was consistent with the recommendation of the court-appointed forensic evaluator, and the position of the attorney for the child, which are entitled to some weight (see Matter of Caravella v. Toale, 78 AD3d 828, lv deneid NY3d, 2011 Slip Op 64882 [2011] ).

Contrary to the mother's contentions, the Family Court properly advised her concerning her right to counsel (see Family Ct Act § 262[a];  Matter of Dorner v. McCarroll, 271 A.D.2d 530).

The Family Court properly took judicial notice of the order of filiation entered on consent.   The Family Court's determination that the mother could not testify, in rebuttal to the admission of the order of filiation, that she had lacked the capacity to consent to the order of filiation, was not an improvident exercise of discretion (see Matter of Lane v. Lane, 68 AD3d 995, 997).

The Family Court providently exercised its discretion in prohibiting the mother from telling the child that any man other than the father is the child's biological father (see Matter of Powell v. Blumenthal, 35 AD3d 615, 617).

FLORIO, J.P., DICKERSON, LEVENTHAL and BELEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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