Matter of Diaz v Garcia

Matter of Matter of Diaz v Garcia 2014 NY Slip Op 05181 Decided on July 9, 2014 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 9, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
CHERYL E. CHAMBERS
PLUMMER E. LOTT
SHERI S. ROMAN, JJ.
2013-06896
(Docket No. V-1028-11/12A)

[*1]In the Matter of David Diaz, respondent,

v

Masiel Garcia, appellant.

Yasmin Daley Duncan, Brooklyn, N.Y., for appellant.

Lance K. Dandridge, Jamaica, N.Y., for respondent.

Nestor Soto, Astoria, N.Y., attorney for the child.

DECISION & ORDER

In a visitation proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Queens County (McGrady, Ct. Atty. Ref.), dated June 24, 2013, which, after a hearing, granted the father's petition to modify the visitation provisions of an order of the same court (Tally, J.), dated May 19, 2011, so as to award him certain unsupervised visitation with the subject child.

ORDERED that the order dated June 24, 2013, is affirmed, without costs or disbursements.

A visitation order may be modified upon a showing of a sufficient change in circumstances since the entry of the prior order such that modification is warranted to further the child's best interests (see Family Ct Act § 652; Matter of Madden v Ruskiewicz, 117 AD3d 827; Matter of Luo v Yang, 103 AD3d 636; Matter of Awan v Awan, 75 AD3d 597, 598). The paramount concern when making any custody or visitation determination is the best interests of the child, under the totality of the circumstances (see Matter of Wilson v McGlinchey, 2 NY3d 375, 380-381; Eschbach v Eschbach, 56 NY2d 167, 172; Friederwitzer v Friederwitzer, 55 NY2d 89, 96; Matter of Boggio v Boggio, 96 AD3d 834, 835; Galanti v Kraus, 85 AD3d 723, 724). "The best interests of the child generally lie in being nurtured and guided by both parents" (Matter of Ross v Morrison, 98 AD3d 515, 517; see Matter of Zwillman v Kull, 90 AD3d 774, 775; Matter of Jules v Corriette, 76 AD3d 1016, 1017). Since custody and visitation determinations "necessarily depend[ ] to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded the court's findings. Therefore, its findings should not be set aside unless they lack a sound and substantial basis in the record" (Matter of Elliott v Felder, 69 AD3d 623 [citation omitted]).

Here, contrary to the mother's contentions, the Family Court's determination has a sound and substantial basis in the record. Thus, the determination will not be disturbed (see Matter of Holmes v Holmes, 116 AD3d 955, 956).

MASTRO, J.P., CHAMBERS, LOTT and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court