Pignetti v. Maust , 703 N.Y.S.2d 531 ( 2000 )

—In consolidated child custody proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Orange County (Kiedaisch, J.), entered April 5, 1999, which, after a hearing, denied his petition for custody of the parties’ child and granted the mother’s petition to relocate with the child from Orange County, New York, to Fort Drum, New York.

Ordered that the order is reversed, on the law and the facts, with costs, the father’s petition is granted, and the mother’s petition is denied as academic. “ ‘[A] change in custody should be made only if the totality of the circumstances warrants a change that is in the best interests of the child’ (Matter of Paul Seth G. v Antoinette M., 227 AD2d 620, 622; see also, Eschbach v Eschbach, 56 NY2d 167). Moreover, ‘[t]he determination of a child’s custody by a hearing court is entitled to great weight on appeal, and should not be set aside lightly, as it is to a large extent a matter of the court’s discretion, depending heavily upon the Judge’s assessment of the credibility of witnesses and the character and temperament of the parties’ (Matter of Vernon Me. v Brenda N., 196 AD2d 823). However, that discretion is not absolute and may be set aside where it lacks a sound basis in the record, or is contrary to the weight of the evidence {see, Matter of Darlene T., 28 NY2d 391; Young v Young, 212 AD2d 114, 117)” {Matter of Lopez v Lopez, 233 AD2d 398, 399).

We find that custody with the father would be in the child’s best interests (see, Matter of Morgan v Becker, 245 AD2d 889; Matter of Brown v Brown, 236 AD2d 611). The Family Court’s determination to the contrary was against the weight of the evidence.

In light of the foregoing, the mother’s petition to relocate with the child to Fort Drum, New York, is academic. Ritter, J. P., Santucci, Thompson and McGinity, JJ., concur.