Garcia v. Zinna, 149 A.D.3d 1185 (N.Y. App. Div. 2017). · Go Syfert
Garcia v. Zinna, 149 A.D.3d 1185 (N.Y. App. Div. 2017). Cases Citing This Book View Copy Cite
4 citation events across 1 distinct court.
Strongest positive: Matter of David V. v. Roseline W. (nyappdiv, 2023-06-08)
Top citers, strongest first. 4 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of David V. v. Roseline W.
N.Y. App. Div. · 2023 · confidence medium
We disagree with the mother's contention that Family Court's award of primary physical custody to the father lacks a sound and substantial basis in the record. [FN1] Family Court expressly credited the father's testimony over the mother's testimony, which it found to be "evasive [and] flippant." When deferring to these credibility determinations, we conclude that there is a sound and substantial basis in the record to support Family Court's finding that it was in the child's best interests to grant the father primary physical custody ( see Matter of Derek KK. v Jennifer KK. , 196 AD3d 765, 767…
discussed Cited as authority (rule) Matter of Mark WW. v. Jennifer B.
N.Y. App. Div. · 2018 · confidence medium
The children had resided with the mother since she and the father split up and, while the children's desire to continue that arrangement was relevant, it was not dispositive ( see Matter of Garcia v Zinna , 149 AD3d 1185, 1186 [2017]).
discussed Cited as authority (rule) Matter of Faber v. Overbaugh
N.Y. App. Div. · 2017 · confidence medium
Family Court determined, and we agree, that these developments constituted a change in circumstances since the entry of the November 2014 order that warranted a best interests analysis (see Matter of Dorsey v De’Loache, 150 AD3d 1420, 1421-1422 [2017]; Matter of Garcia v Zinna, 149 AD3d 1185, 1185 [2017]; Matter of Paul A. v Shaundell LL., 117 AD3d 1346, 1348 [2014], lv dismissed and denied 24 NY3d 937 [2014]; Matter of Fortner v Benson, 306 AD2d 577, 577-578 [2003]).
discussed Cited as authority (rule) Matter of Whetsell v. Braden
N.Y. App. Div. · 2017 · confidence medium
In light of the child’s age at the time of the fact-finding hearing, her preference is an additional factor to be taken into account, but is not dispositive (see Matter of Garcia v Zinna, 149 AD3d 1185, 1186 [2017]; Matter of Rivera v LaSalle, 84 AD3d 1436, 1439 [2011]).
Retrieving the full opinion text from the archive…
In the Matter of Kathy Garcia
v.
Anthony Zinna
Appellate Division of the Supreme Court of the State of New York.
Apr 6, 2017.
149 A.D.3d 1185
Clark, Egan, Lynch, Mulvey, Rose.
Cited by 4 opinions  |  Published
Rose, J.

Appeal from an order of the Family Court of Broome County (Connerton, J.), entered December 8, 2015, which partially dismissed petitioner’s application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody and visitation.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the married, but separated, parents of a daughter (born in 2002). In 2009, the child began residing with the father after she was removed from the mother’s care following an investigation of the mother and her then-boyfriend by Child Protective Services regarding, among other issues, allegations of domestic violence. A neglect proceeding was commenced against the mother and, in January 2010, Family Court awarded the father sole legal and primary physical custody of the child, with a schedule of visitation for the mother. In May 2015, the mother commenced this modification proceeding seeking joint legal and primary physical custody of the child. Following fact-finding and Lincoln hearings, Family Court awarded the parties joint legal custody, but maintained primary physical custody with the father and granted liberal visitation to the mother. The mother now appeals, arguing that Family Court erred in denying her request for primary physical custody of the child.

Although we agree with the mother that her proof concerning the child’s recent emotional issues and her own participation in domestic violence and mental health counseling since the child’s removal from her home in 2009 constitute a change in circumstances warranting a best interests analysis (see Matter of Williams v Patinka, 144 AD3d 1432, 1432-1433 [2016]), we are unpersuaded by her contention that Family Court’s award of primary physical custody to the father lacks a sound and substantial basis in the record. Instead, our review of the record confirms Family Court’s finding that the father has done[*1186] a good job of caring for the child and has permitted the child to spend substantial time with the mother outside of the confines of the schedule set forth in the January 2010 order. Although the mother testified that, if given primary physical custody, she would foster a relationship between the child and the father, the record reflects the mother’s lack of credibility in this respect based upon her past attempts to sever the child’s relationship with the father. In addition, it is readily apparent from the record that, while the father has a stricter parenting style than the mother, the child is provided with more structure at the father’s home, and the father has demonstrated the greater ability to guide and provide for the child’s overall well-being. Further, Family Court found that once the father became aware of certain facts concerning the child’s emotional issues, which the mother and the child had withheld from him, he supported the child’s mental health counseling and participated in sessions with the mother and the child.

Finally, “[w]e note that, while the child’s wishes are to be taken into account, her preference to reside with the mother, as expressed by the attorney for the child, is not dispositive” (Matter of Bradley D. v Andrea D., 144 AD3d 1417, 1419 [2016]; see Matter of Holleran v Faucett, 143 AD3d 1205, 1206 [2016]). Thus, after considering the record as a whole and according deference to Family Court’s factual findings and credibility determinations (see Matter of Richard Y. v Vanessa Z., 146 AD3d 1050, 1051 [2017]), we discern no basis upon which to disturb Family Court’s determination to continue primary physical custody with the father.

Egan Jr., J.P., Lynch, Clark and Mulvey, JJ., concur.

Ordered that the order is affirmed, without costs.