Opinion
11716 Dkt. V-31155-13/15D V-09236-15 V-22474-15
06-25-2020
In re DESERIE D. G., Petitioner-Respondent, v. JONATHAN C., Respondent-Appellant.
Larry S. Bachner, New York, for appellant. Jonathan Rosenberg, PLLC, Brooklyn (Jonathan Rosenberg of counsel), for respondent.
Larry S. Bachner, New York, for appellant.
Jonathan Rosenberg, PLLC, Brooklyn (Jonathan Rosenberg of counsel), for respondent.
Renwick, J.P., Mazzarelli, Webber, Kern, Moulton, JJ.
Order, Family Court, Bronx County (Tracey A. Bing, J.), entered on or about March 31, 2017, which, after a trial, awarded the mother sole legal and physical custody of subject child Ariana C., unanimously affirmed, without costs. Matters of custody are within the sound discretion of the trial court and its findings should be accorded great deference, as that court was in the best position to evaluate the parties' testimony, character, and sincerity ( Matter of Deanna V. v. Michael C., 179 A.D.3d 445, 446, 117 N.Y.S.3d 189 [1st Dept. 2020] ; Matter of Lisa W. v. John M., 142 A.D.3d 879, 38 N.Y.S.3d 148 [1st Dept. 2016], lv denied 28 N.Y.3d 912, 2017 WL 53563 [2017] ). Its determination should not be disturbed unless it lacks a sound and substantial basis in the record ( Deanna V., 179 A.D.3d at 446, 117 N.Y.S.3d 189 ).
The record supports the award of sole custody to the mother and denial of joint custody. It supports the finding that the mother, with the grandmother's help, cared for the child's daily needs. The finding of the parties' acrimonious relationship, evinced by domestic violence and extensive litigation history, and the finding that the parties do not communicate about the child further supports the Family Court's decision ( Deanna V., 179 A.D.3d at 445, 117 N.Y.S.3d 189 ). The father, who ignores the domestic violence issue, offers no reason to revisit the finding that the mother testified credibly as to his aggressive behavior, which the court properly took into account ( Phillips v. Phillips, 146 A.D.3d 719, 46 N.Y.S.3d 77 [1st Dept. 2017] ). The court properly balanced these issues at arriving at its decision. Further, the court acknowledged the mother's inflexibility as to parenting time and the benefits of the child spending time with her father, and accordingly awarded him significant parenting time and access to information.
The father's arguments regarding an attorney for the child (AFC) are unpreserved and, in any event, lack merit. "There is no requirement that the court invariably appoint a Law Guardian for the child in every case where parents ... seek a judicial determination of child custody and there is no indication that the child's interests were prejudiced in any way" ( Sendor v. Sendor, 93 A.D.3d 586, 587, 941 N.Y.S.2d 556 [1st Dept. 2012], quoting Richard D. v. Wendy P., 47 N.Y.2d 943, 944–945, 419 N.Y.S.2d 949, 393 N.E.2d 1022 [1979] ; Ambrose v. Ambrose, 176 A.D.3d 1148, 1151, 113 N.Y.S.3d 106 [2d Dept. 2019] ; Matter of Dorsey v. De'Loache, 150 A.D.3d 1420, 1423, 54 N.Y.S.3d 728 [3d Dept. 2017] ). Under the circumstances, including the child's young age and the absence of demonstrable prejudice to her interests, the court providently exercised its discretion to not appoint an AFC.