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

469
CAF 12-00300
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF DAVID BONNELL,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

KIMBERLY J. RODGERS, RESPONDENT-APPELLANT.


CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT.

KEVIN M. REEDY, BUFFALO, FOR PETITIONER-RESPONDENT.

PETER P. VASILION, ATTORNEY FOR THE CHILD, WILLIAMSVILLE, FOR JORDAN
D.R.-B.


     Appeal from an order of the Family Court, Erie County (Paul G.
Buchanan, J.), entered January 27, 2012. The order, among other
things, awarded primary physical custody of the subject child to
petitioner.

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

     Memorandum: Respondent mother appeals from an order that, inter
alia, granted in part the amended petition by awarding petitioner
father primary physical custody of the parties’ child and visitation
to the mother. The mother contends that Family Court abused its
discretion in denying her motion to change venue from Erie County to
Chautauqua County. We reject that contention. At the time the father
commenced this proceeding in Erie County, he and the child resided in
that jurisdiction. The mother contends that a change of venue was
required for the convenience of material witnesses, but in support of
her motion she failed to identify a single witness who would be
inconvenienced by proceeding in Erie County. We therefore conclude
that the mother failed to demonstrate “good cause” for transferring
this proceeding to Chautauqua County (Family Ct Act § 174; see
Rochester Drug Coop., Inc. v Marcott Pharmacy N. Corp., 15 AD3d 899,
899; cf. Seguin v Landfried, 96 AD3d 1433, 1433; Matter of Arcuri v
Osuna, 41 AD3d 841, 841-842).

     Contrary to the mother’s further contention, this proceeding
involves an initial determination with respect to custody of the
child. Therefore, “ ‘[a]lthough the parties’ informal [custody]
arrangement is a factor to be considered, [the father] is not required
to prove a substantial change in circumstances in order to warrant a
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                                                         CAF 12-00300

modification thereof’ ” (Matter of Thillman v Mayer, 85 AD3d 1624,
1625; see Matter of Bruce BB. v Debra CC., 307 AD2d 408, 409). We
further conclude that, contrary to the mother’s contention, the court
properly determined that it was in the best interests of the child
that the parties share joint custody of the child with primary
physical custody with the father. The court’s custody determination
following a hearing 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” (Thillman, 85 AD3d at 1625). Here, the court’s written
decision establishes that the court engaged in a “ ‘careful weighing
of [the] appropriate factors’ ” (Matter of Triplett v Scott, 94 AD3d
1421, 1422), and the court’s determination has a sound and substantial
basis in the record (see Betro v Carbone, 5 AD3d 1110, 1110; Matter of
Thayer v Ennis, 292 AD2d 824, 825).




Entered:   May 3, 2013                         Frances E. Cafarell
                                               Clerk of the Court
