               SUPREME COURT OF THE STATE OF NEW YORK
                  Appellate Division, Fourth Judicial Department

659
CAF 11-01859
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND MARTOCHE, JJ.


IN THE MATTER OF DANIEL TARRANT,
PETITIONER-RESPONDENT,

                    V                                     MEMORANDUM AND ORDER

SHANNON OSTROWSKI, RESPONDENT-APPELLANT.


DOMINIC PAUL CANDINO, BUFFALO, FOR RESPONDENT-APPELLANT.

VENZON LAW FIRM PC, BUFFALO (CATHARINE M. VENZON OF COUNSEL), FOR
PETITIONER-RESPONDENT.

MINDY L. MARRANCA, ATTORNEY FOR THE CHILDREN, BUFFALO, FOR OLIVIA T.
AND DOMINIC T.


     Appeal from an order of the Family Court, Erie County (Sharon M.
LoVallo, A.J.), entered August 29, 2011 in a proceeding pursuant to
Family Court Act article 6. The order, inter alia, granted petitioner
sole custody of the parties’ children.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Respondent mother appeals from an order modifying
the parties’ existing custody arrangement by transferring physical
custody of the parties’ two children to petitioner father and granting
the father sole custody of the children. The parties have had joint
custody of the children with primary physical custody with the mother
since February 24, 2010, pursuant to an order incorporating the
parties’ January 5, 2010 written custody agreement. In addition,
Family Court adjudicated the mother to have violated prior court
orders.

     We reject the mother’s contention that the court erred in
determining that she willfully violated one or more prior court
orders. Deferring as we must to the court’s findings of fact, which
are supported by a “sound and substantial basis in the record” (Matter
of Alice A. v Joshua B., 232 AD2d 777, 779), as well as its resolution
of issues of credibility, we conclude that there was the requisite
clear and convincing evidence to support the finding that the mother
willfully violated a prior court order by preventing the father from
receiving custodial access to the children in April 2010 (see
generally Matter of Seacord v Seacord, 81 AD3d 1101, 1103). That
custodial access was set forth in the parties’ January 5, 2010 custody
agreement, which in turn was incorporated in the court’s order of
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                                                         CAF 11-01859

February 24, 2010.

     We also reject the mother’s contention that the court erred in
considering testimony regarding matters that predated the
aforementioned custody agreement and order. In custody cases, “Family
Court is afforded broad discretion in establishing the parameters of
the proof at trial and, if necessary, may extend it to all relevant
matters” (Matter of Gardner v Gardner, 69 AD3d 1243, 1244). Here, the
court explained that background information regarding the nature of
the parties’ relationship prior to the custody order and the
circumstances surrounding their separation was required, to enable the
court to understand the reluctance of the older child to spend time
with the father and to make a more informed decision on the father’s
instant modification petition. Because the testimony in question
provided the court with a baseline from which to assess whether there
was a change in circumstances and permitted the court to conduct a
more complete assessment of the best interests of the children, we
conclude that the court did not abuse its discretion in considering
such testimony. Contrary to the mother’s further contention, such
testimony was not barred by res judicata or collateral estoppel.

     Turning to the merits of the mother’s challenge to the transfer
of custody, we note that “alteration of an established custody
arrangement will be ordered only upon a showing of a change in
circumstances which reflects a real need for change to ensure the best
interest[s] of the child[ren]” (Matter of Irwin v Neyland, 213 AD2d
773, 773). Here, the evidence at the hearing indicated that, prior to
the establishment of the previous custody arrangement, the parties had
no issues carrying out the father’s custodial access, the father had
successful visits with the children, and both children were loving in
their interactions with the father and the paternal grandparents. The
evidence further indicated that, after the prior custody arrangement
was established, the father was denied access to the children on at
least three occasions and the behavior of the older child toward the
father and the paternal grandparents deteriorated drastically.
Specifically, the older child began to exhibit a newfound hostility
toward the father and paternal grandparents, showed an unwillingness
to enjoy time spent with them, suddenly became unwilling to speak to
the father on the telephone and, indeed, began acting in a violent
manner toward the father. In light of that evidence, the court
properly determined that a sufficient change of circumstances existed
to warrant a review of the custody arrangement.

     The remaining issue is whether the court erred in determining
that the change of custody to the father was in the children’s best
interests. The court’s determination is “entitled to great deference”
and will not be disturbed if “the record establishes that it is the
product of ‘careful weighing of [the] appropriate factors’ . . . and
it has a sound and substantial basis in the record” (Matter of McLeod
v McLeod, 59 AD3d 1011, 1011). Although “defiance of a court order is
but one factor to be considered when determining the relative fitness
of the parties and what custody arrangement is in the child[ren]’s
best interest[s]” (Wodka v Wodka, 168 AD2d 1000, 1001), we conclude
that the court properly weighed and considered all of the relevant
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                                                         CAF 11-01859

factors, some of which favored the father while others favored the
mother. Giving due deference to the court’s “superior ability to
evaluate the character and credibility of the witnesses” (Matter of
Thillman v Mayer, 85 AD3d 1624, 1625), we perceive no basis to disturb
its award of custody to the father.




Entered:   June 15, 2012                        Frances E. Cafarell
                                                Clerk of the Court
