SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

469 

CAF 12-00300 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ. 

 

IN THE MATTER OF DAVID BONNELL, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

KIMBERLY J. RODGERS, RESPONDENT-APPELLANT.

 

CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT.

KEVIN M. REEDY, BUFFALO, FOR PETITIONER-RESPONDENT. 

PETER P. VASILION, ATTORNEY FOR THE CHILD, WILLIAMSVILLE, FOR JORDAN

D.R.-B. 

 

Appeal from an order of the Family Court, Erie County (Paul G.

Buchanan, J.), entered January 27, 2012. The order, among other

things, awarded primary physical custody of the subject child to

petitioner. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Respondent mother appeals from an order that, inter

alia, granted in part the amended petition by awarding petitioner

father primary physical custody of the parties’ child and visitation

to the mother. The mother contends that Family Court abused its

discretion in denying her motion to change venue from Erie County to

Chautauqua County. We reject that contention. At the time the father

commenced this proceeding in Erie County, he and the child resided in

that jurisdiction. The mother contends that a change of venue was

required for the convenience of material witnesses, but in support of

her motion she failed to identify a single witness who would be

inconvenienced by proceeding in Erie County. We therefore conclude

that the mother failed to demonstrate “good cause” for transferring

this proceeding to Chautauqua County (Family Ct Act § 174; see

Rochester Drug Coop., Inc. v Marcott Pharmacy N. Corp., 15 AD3d 899,

899; cf. Seguin v Landfried, 96 AD3d 1433, 1433; Matter of Arcuri v

Osuna, 41 AD3d 841, 841-842).

Contrary to the mother’s further contention, this proceeding

involves an initial determination with respect to custody of the

child. Therefore, “ ‘[a]lthough the parties’ informal [custody]

arrangement is a factor to be considered, [the father] is not required

to prove a substantial change in circumstances in order to warrant a
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CAF 12-00300 

modification thereof’ ” (Matter of Thillman v Mayer, 85 AD3d 1624,

1625; see Matter of Bruce BB. v Debra CC., 307 AD2d 408, 409). We

further conclude that, contrary to the mother’s contention, the court

properly determined that it was in the best interests of the child

that the parties share joint custody of the child with primary

physical custody with the father. The court’s custody determination

following a hearing is entitled to great deference (see Eschbach v

Eschbach, 56 NY2d 167, 173), “particularly in view of the hearing

court’s superior ability to evaluate the character and credibility of

the witnesses” (Thillman, 85 AD3d at 1625). Here, the court’s written

decision establishes that the court engaged in a “ ‘careful weighing

of [the] appropriate factors’ ” (Matter of Triplett v Scott, 94 AD3d

1421, 1422), and the court’s determination has a sound and substantial

basis in the record (see Betro v Carbone, 5 AD3d 1110, 1110; Matter of

Thayer v Ennis, 292 AD2d 824, 825).

Entered: May 3, 2013 Frances E. Cafarell

Clerk of the Court