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

Marash GJELAJ, Respondent, v. Anisa GJELAJ, Appellant.


Decided: January 23, 2019

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, VALERIE BRATHWAITE, NELSON LINDA CHRISTOPHER, JJ. Karen M. Jansen, White Plains, NY, for appellant. Neal S. Comer, White Plains, NY, for respondent. Stephen P. Gold, White Plains, NY, attorney for the child.


ORDERED that the judgment of divorce is affirmed insofar as appealed from, with costs.

The parties were married in 2004 and are the parents of one child, born in 2008.  The parties later separated and entered into a custody agreement dated March 24, 2009, which was so-ordered by the Family Court.  The agreement provided, inter alia, that each parent would share equal custody of the child.

On May 31, 2013, the plaintiff commenced this action for a divorce and ancillary relief.  After a nonjury trial on the issue of custody, and upon an order dated July 8, 2016, the Supreme Court entered a judgment of divorce, inter alia, awarding the plaintiff full legal and physical custody of the child.

Where, as here, parents have entered into an agreement concerning custody, the agreement will not be set aside unless there is a sufficient change in circumstances since the time the agreement was entered into and unless modification of the agreement is in the best interests of the child (see McAvoy v. Hannigan, 107 A.D.3d 960, 962–963, 967 N.Y.S.2d 757;  McNally v. McNally, 28 A.D.3d 526, 527, 816 N.Y.S.2d 98).  “The best interests of the child are determined by a review of the totality of the circumstances” (Matter of Gangi v. Sanfratello, 157 A.D.3d 677, 678, 66 N.Y.S.3d 622;  see Eschbach v. Eschbach, 56 N.Y.2d 167, 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95–96, 447 N.Y.S.2d 893, 432 N.E.2d 765).  Custody determinations largely depend upon the court's “assessments of the credibility, character, temperament, and sincerity of the parties” (Matter of Lao v. Gonzales, 130 A.D.3d 624, 625, 13 N.Y.S.3d 211;  see Matter of Lombardi v. Valenti, 120 A.D.3d 817, 818, 991 N.Y.S.2d 457).  The court's credibility findings should be accorded great weight, and its custody determination should not be disturbed unless it lacks a sound and substantial basis in the record (see Matter of Lao v. Gonzales, 130 A.D.3d at 625, 13 N.Y.S.3d 211;  Matter of Lombardi v. Valenti, 120 A.D.3d at 818, 991 N.Y.S.2d 457).

Here, contrary to the defendant's contentions, there had been a sufficient change in circumstances since the parties entered into the so-ordered custody agreement, which warranted a modification of the agreement.  In addition, the best interests of the child would be served by modifying the agreement and transferring custody to the plaintiff.  Accordingly, the Supreme Court's determination to award full legal and physical custody of the child to the plaintiff has a sound and substantial basis in the record and will not be disturbed (see Matter of Harrison v. McClellan, 151 A.D.3d 723, 53 N.Y.S.3d 548;  Matter of Tobar v. Velez–Molina, 95 A.D.3d 1224, 1224–1225, 945 N.Y.S.2d 341;  Matter of Harris v. Carter, 66 A.D.3d 780, 886 N.Y.S.2d 760;  Matter of Battista v. Fasano, 41 A.D.3d 712, 713, 838 N.Y.S.2d 178;  Matter of Galanos v. Galanos, 28 A.D.3d 554, 555, 816 N.Y.S.2d 90).


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