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

1359
CAF 14-00047
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND DEJOSEPH, JJ.


IN THE MATTER OF JAMIE LYNN BIAGINI,
PETITIONER-APPELLANT-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WALTER J. PARENT, JR.,
RESPONDENT-RESPONDENT-APPELLANT.
---------------------------------------
IN THE MATTER OF WALTER J. PARENT, JR.,
PETITIONER-RESPONDENT-APPELLANT,

                    V

JAMIE LYNN BIAGINI,
RESPONDENT-APPELLANT-RESPONDENT.


JOHN J. RASPANTE, UTICA, FOR PETITIONER-APPELLANT-RESPONDENT AND
RESPONDENT-APPELLANT-RESPONDENT.

LAW OFFICES OF MARC JONAS, UTICA (JASON D. FLEMMA OF COUNSEL), FOR
RESPONDENT-RESPONDENT-APPELLANT AND PETITIONER-RESPONDENT-APPELLANT.

JOHN G. KOSLOSKY, ATTORNEY FOR THE CHILD, UTICA.


     Appeal and cross appeal from an order of the Family Court, Oneida
County (James R. Griffith, J.), entered August 30, 2013 in a
proceeding pursuant to Family Court Act article 6. The order, among
other things, modified a prior custody order by awarding respondent-
petitioner primary physical custody of the parties’ child, with
visitation to petitioner-respondent.

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

     Memorandum: Petitioner-respondent mother appeals and
respondent-petitioner father cross-appeals from an order that, inter
alia, granted the father’s cross petition seeking to modify a prior
custody order entered upon the consent of the parties by awarding him
primary physical custody of the parties’ child, with visitation to the
mother. Initially, we note that the parties correctly agree that the
evidence at the hearing established “ ‘a change in circumstances
[that] reflects a real need for change to ensure the best interest[s]
of the child’ ” (Matter of Di Fiore v Scott, 2 AD3d 1417, 1417; see
Matter of Carey v Windover, 85 AD3d 1574, 1574, lv denied 17 NY3d
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                                                         CAF 14-00047

710). Under the prior order, the parties shared residential custody
of the child, with the child moving from one parent to the other on
Wednesdays. That schedule was no longer practical upon the child’s
attainment of school age (see Matter of Dickerson v Robenstein, 68
AD3d 1179, 1179-1180; see also Matter of Claflin v Giamporcaro, 75
AD3d 778, 779-780, lv denied 15 NY3d 710).

     Contrary to the mother’s contention on appeal, Family Court did
not abuse its discretion in awarding the father custody of the child
during those days of the week when school is in session. “Generally,
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 Krug v Krug, 55 AD3d 1373, 1374 [internal quotation marks
omitted]). We see no basis to disturb the court’s determination
inasmuch as it was based on the court’s credibility assessments of the
witnesses and “is supported by a sound and substantial basis in the
record” (Matter of Angel M.S. v Thomas J.S., 41 AD3d 1227, 1228).
Contrary to the mother’s further contention, she failed to submit any
expert testimony or evidence establishing that it was in the child’s
best interests to attend school in the Town of Clinton and, instead,
presented only her own speculative testimony with respect thereto (cf.
Matter of Crudele v Wells [appeal No. 2], 99 AD3d 1227, 1228).

     Contrary to the father’s contention on his cross appeal, the
visitation schedule set by the court does not grant excessive
visitation to the mother (cf. Cesario v Cesario, 168 AD2d 911, 911).
“Indeed, we note that the visitation schedule ordered by the court was
in large part proposed by the father during his testimony” (Matter of
Abbott v Merritt, 118 AD3d 1309, 1310).




Entered:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
