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

775
CAF 10-00316
PRESENT: SMITH, J.P., CENTRA, FAHEY, GORSKI, AND MARTOCHE, JJ.


IN THE MATTER OF LORI M. THILLMAN,
PETITIONER-RESPONDENT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CHARLES R. MAYER,
RESPONDENT-PETITIONER-RESPONDENT.


PETER O. EINSET, GENEVA, FOR PETITIONER-RESPONDENT-APPELLANT.

CHARLES GUTTMAN, ITHACA, FOR RESPONDENT-PETITIONER-RESPONDENT.

ANNE S. GALBRAITH, ATTORNEY FOR THE CHILD, CANANDAIGUA, FOR LILY E.M.


     Appeal from an order of the Family Court, Seneca County (Dennis
F. Bender, J.), entered November 6, 2009 in a proceeding pursuant to
Family Court Act article 6. The order, among other things, granted
sole custody of the subject child to respondent.

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

     Memorandum: Petitioner mother appeals from an order that, inter
alia, granted respondent father’s cross petition seeking joint custody
of the parties’ child. The mother had sought modification of the
existing joint custody arrangement, pursuant to which she had primary
physical custody of the child upon the agreement of the parties.
Contrary to the mother’s contention, the record establishes that there
was no prior court order determining custody. Thus, this proceeding
involves an initial court determination with respect to custody and,
“[a]lthough the parties’ informal arrangement is a factor to be
considered, [the father] is not required to prove a substantial change
in circumstances in order to warrant a modification thereof” (Matter
of Smith v Smith, 61 AD3d 1275, 1276; see Matter of Morrow v Morrow, 2
AD3d 1225). In addition, contrary to the mother’s further contention,
Family Court properly granted the father sole custody of the parties’
child. The court’s determination following a hearing that the best
interests of the child would be served by such an award is entitled to
great deference (see Eschbach v Eschbach, 56 NY2d 167, 173),
particularly in view of the hearing court’s superior ability to
evaluate the character and credibility of the witnesses (see Matter of
Paul C. v Tracy C., 209 AD2d 955). We will not disturb that
determination inasmuch as the record establishes that it is the
product of the court’s “careful weighing of [the] appropriate factors”
                                 -2-                          775
                                                        CAF 10-00316

(Matter of Pinkerton v Pensyl, 305 AD2d 1113, 1114), and it has a
sound and substantial basis in the record (see Betro v Carbone, 5 AD3d
1110; Matter of Thayer v Ennis, 292 AD2d 824).

     The mother’s contentions concerning visitation are not properly
before this Court on appeal, because “they raise issues not determined
by the order” on appeal (Matter of Joseph A., 78 AD3d 826, 827). The
mother did not request a Lincoln hearing and thus failed to preserve
for our review her further contention that the court abused its
discretion in failing to conduct such a hearing (see Matter of Lopez v
Robinson, 25 AD3d 1034, 1037; Matter of Picot v Barrett, 8 AD3d 288,
289). In any event, based on the child’s young age, we perceive no
abuse of discretion in the court’s failure to conduct a Lincoln
hearing (see Matter of Graves v Stockigt, 79 AD3d 1170, 1171). We
have considered the mother’s further contentions and conclude that
they are without merit.




Entered:   June 10, 2011                       Patricia L. Morgan
                                               Clerk of the Court
