49 A.D.3d 772
N.Y. App. Div.
2008

In the Matter of ANDRZEJ TERCJAK, Respondent, v JADWIGA TERCJAK, Appellant.

Appellate Division of the Supreme Court of New York, Second Department

2008

854 N.Y.S.2d 453

In the Matter of ANDRZEJ TERCJAK, Respondent, v JADWIGA TERCJAK, Appellant. [854 NYS2d 453]

An agreement between parents concerning custody will not be set aside unless there is a sufficient change in circumstances since the time of the agreement and unless the modification of the custody agreement is in the best interests of the child (see Pambianchi v Goldberg, 35 AD3d 688, 689 [2006]). As a custody determination depends to a great extent upon an assessment of the character and credibility of the parties and witnesses, the findings of the Family Court will not be disturbed unless they lack a sound and substantial basis in the record (see Eschbach v Eschbach, 56 NY2d 167, 174 [1982]; Matter of Honeywell v Honeywell, 39 AD3d 857, 858 [2007]; Kuncman v Kuncman, 188 AD2d 517, 518 [1992]). Here, there is a sound and substantial basis in the record for the Family Court’s award of sole physical and legal custody to the father (see Eschbach v Eschbach, 56 NY2d 167, 172 [1982]; Vinciguerra v Vinciguerra, 294 AD2d 565, 566 [2002]).

Although the Family Court improvidently exercised its discretion in admitting into evidence the report of the neutral forensic psychologist, since the report was not submitted under oath (see 22 NYCRR 202.16 [g] [2]) and relied on information other than that upon which an expert may properly base an opinion (see Matter of D‘Esposito v Kepler, 14 AD3d 509 [2005]), the error in admitting the report was harmless. There is a sound and substantial basis in the record for the Family Court’s determination without consideration of the improperly admitted report (see Matter of D‘Esposito v Kepler, 14 AD3d 509 [2005]).

The mother’s remaining contentions are without merit.

Lifson, J.P., Ritter, Florio and Carni, JJ., concur.