Huneke v. Huneke

— Appeal from an order of the Family Court of Schoharie County (Lamont, J.), entered December 17, 1982, which awarded custody of the parties’ child to petitioner. The parties to this custody proceeding were married 685 on April 17, 1965 and the sole issue of the marriage, a son, was born on February 11, 1972. In a separation agreement executed in November, 1977, the parties agreed that respondent mother would have custody of the child but such agreement as to custody was made without prejudice and was not to be used by respondent in any custody hearing or determination thereafter. This separation agreement was incorporated but not merged in a judgment of divorce dated December 4, 1981. The judgment of divorce awarded custody of the child to respondent mother and further provided that all questions concerning custody, visitation and support were referred to the appropriate Family Court. In February, 1982, petitioner commenced the present proceeding seeking a modification of the divorce judgment so as to award to him the custody of the child. Following a hearing, the Family Court ordered that custody of the child be granted to petitioner and this appeal ensued. In child custody cases, the paramount consideration is the best interest of the child (Matter of Fitch v Guinn, 92 AD2d 682). Family Court has the discretion to change custody “when the totality of circumstances, including the existence of the prior award, warrants its doing so in the best interests of the child” (Friederwitzer v Friederwitzer, 55 NY2d 89, 96). In the present case, Family Court considered not only the testimony presented at the hearing but also reports from a school psychologist, the Schoharie County Probation Department, and the Schoharie County Mental Health Center as well as confidential interviews with the child of the parties. Family Court found the presence of countervailing circumstances on consideration of the totality of the circumstances (Friederwitzer v Friederwitzer, 55 NY2d 89, 95, supra) and concluded that the best interests of the child would be served by changing custody to petitioner. The decision of the court reveals a thorough evaluation of the evidence presented and a careful weighing of several factors in reaching the determination to change custody. We accord the greatest respect to the findings of the nisi prius court and should be reluctant to substitute our own evaluation of the relevant factors for that of the Family Court (Eschbach v Eschbach, 56 NY2d 167, 173). In view of the above standards, we are of the opinion that the record, contrary to respondent’s contentions, supports the Family Court’s determination that a change of custody was warranted. The order, therefore, should be affirmed (see Matter of Dylong v Dylong, 92 AD2d 698). Order affirmed, without costs. Sweeney, J. P., Kane, Casey and Weiss, JJ., concur.