Marino v. Marino

• Decision Date: 30 December 2011
• Parties: In the Matter of John C. MARINO, Petitioner–Respondent, v. Sherry L. MARINO, Respondent.Sonali R. Suvvaru, Esq., Attorney for the Child, Appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09749

90 A.D.3d 1694

935 N.Y.S.2d 818

In the Matter of John C. MARINO, Petitioner–Respondent,

v.Sherry L. MARINO, Respondent.Sonali R. Suvvaru, Esq., Attorney for the Child, Appellant.

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

Dec. 30, 2011.

Sonali R. Suvvaru, Attorney for the Child, Canandaigua, Appellant pro se.

PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.

MEMORANDUM:

The Attorney for the Child appeals from an order that granted the petition of petitioner father seeking to modify the parties' prior custody agreement by awarding him sole custody of the parties' child. We note at the outset that, although Family Court may alter an existing custody agreement only in the event that there is “a showing of a change in circumstances [that] reflects a real need for change to ensure the best interest[s] of the child” ( Matter of Carey v. Windover, 85 A.D.3d 1574, 1574, 925 N.Y.S.2d 360, lv. denied 17 N.Y.3d 710, 2011 WL 4357160 [internal quotation marks omitted] ), the Attorney for the Child correctly concedes that there has been such a showing here.

Upon determining that there has been a change in circumstances, the court must consider whether the requested modification is in the best interests of the child ( see generally Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 93–95, 447 N.Y.S.2d 893, 432 N.E.2d 765). In making that determination, the court must consider all factors that could impact the best interests of the child, including the existing custody arrangement, the current home environment, the financial status of the parties, the ability of each parent to provide for the child's emotional and intellectual development and the wishes of the child ( see Eschbach, 56 N.Y.2d at 172–173, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Fox v. Fox, 177 A.D.2d 209, 210, 582 N.Y.S.2d 863). No one factor is determinative because the court must review the totality of the circumstances ( see Eschbach, 56 N.Y.2d at 174, 451 N.Y.S.2d 658, 436 N.E.2d 1260). It is well settled, however, that “ ‘[a] concerted effort by one parent to interfere with the other parent's contact with the child is so inimical to the best interests of the child ... as to, per se, raise a strong probability that [the interfering parent] is unfit to act as custodial parent’ ” ( Matter of Amanda B. v. Anthony B., 13 A.D.3d 1126, 1127, 787 N.Y.S.2d 808; see Matter of Howden v. Keeler, 85 A.D.3d 1561, 924 N.Y.S.2d 880). In addition, “ ‘a court's determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record’ ” ( Matter of Dubuque v. Bremiller, 79 A.D.3d 1743, 1744, 913 N.Y.S.2d 855; see Matter of Green v. Bontzolakes, 83 A.D.3d 1401, 919 N.Y.S.2d 451, lv. denied 17 N.Y.3d 703, 2011 WL 2473059).

Based on our review of the record, we conclude that the totality of the circumstances supports the award of custody to the father. There is ample evidence in the record to support the court's conclusion that respondent mother...