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Schimmel v. Schimmel

262 A.D.2d 990 Court N.Y. App. Div. Decision date 1999-06-18 English

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p. 990
In the Matter of Kimberly Schimmel, Appellant, v Charles Schimmel, Respondent.
[692 NYS2d 291]

—Order unanimously affirmed without costs. Memorandum: “The court’s determination regarding custody * * * 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 (see, Paul G. v Donna G., 175 AD2d 236 , 237; D’Errico v D’Errico, 158 AD2d 503 , 504; Lenczycki v Lenczycki, 152 AD2d 621 , 623)” (Matter of Samuel L. J. v Sherry H., 206 AD2d 886 , lv denied 84 NY2d 810 ). The record supports Family Court’s determination that the best interests of the children will be

p. 991
served by awarding primary placement to respondent. Contrary to petitioner’s contention, the court was not required in this proceeding to accord great weight to the preexisting custodial arrangement (cf., Matter of King v King, 216 AD2d 962 , 963). Both parties filed petitions seeking modification of that arrangement because it was not suited to the older child’s attendance at school. Thus, the parties did not dispute that there was “a sufficient change in circumstances demonstrating a real need for a change in order to insure” the children’s best interests (Matter of Kamholtz v Kovary, 210 AD2d 813 , 814). The court properly considered and weighed the appropriate factors (see, Eschbach v Eschbach, 56 NY2d 167 , 172-173; Matter of Paul C. v Tracy C., 209 AD2d 955 , 956), and the change made to the preexisting custodial arrangement has a sound and substantial basis in the record (see, Matter of Taber v Taylor, 238 AD2d 696 , 697).

We reject the contention of petitioner that she was denied her right to effective assistance of counsel. “Viewed in its totality, the record reveals that petitioner was provided with meaningful and constitutionally competent legal representation” (Matter of Dingman v Purdy, 221 AD2d 817 , 818). (Appeal from Order of Steuben County Family Court, Purple, Jr., J. — Custody.) Present — Green, J. P., Pine, Wisner, Hurlbutt and Balio, JJ.

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