MacKay v. MacKay

In custody proceedings pursuant to Family Court Act article 6, the mother appeals (1) from a decision of the Family Court, Queens County (Marks, J.), dated August 23, 2004, and (2), as limited by her brief, from so much of an order of the same court dated November 12, 2004, as granted the father’s petition to modify an order of the same court dated September 29, 1999, and awarded him residential custody of the subject children.

Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v Green Constr. Corp., 100 AD2d 509 [1984]); and it is further,

Ordered that the order dated November 12, 2004, is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is awarded to the respondent.

In determining whether a custody order should be modified, the paramount issue before the court is whether the totality of the circumstances warrant modification in the best interests of the children (see Friederwitzer v Friederwitzer, 55 NY2d 89, 96 [1982]; Matter of Pignetti v Maust, 270 AD2d 274 [2000]). Upon reviewing the record in light of the factors outlined in Friederwitzer v Friederwitzer (supra), we are satisfied that the Family Court correctly determined that the best interests of the subject children would be served by modifying the custody order so as to award the father residential custody (see Eschbach v Eschbach, 56 NY2d 167 [1982]; cf. Donnelly v Donnelly, 273 AD2d 233 [2000]). Accordingly, the Family Court’s determination was proper. Adams, J.P., Krausman, Spolzino and Fisher, JJ., concur.