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Matter of Pignetti v. Maust

Appellate Division of the Supreme Court of New York, Second Department
Mar 9, 2000
270 A.D.2d 274 (N.Y. App. Div. 2000)

Opinion

Submitted February 1, 2000

March 9, 2000

In consolidated child custody proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Orange County (Kiedaisch, J.), entered April 5, 1999, which, after a hearing, denied his petition for custody of the parties' child and granted the mother's petition to relocate with the child from Orange County, New York, to Fort Drum, New York.

Levinson, Zeccola, Reineke, Ornstein Selinger, P.C., Central Valley, N.Y. (John S. Selinger of counsel), for appellant.

Bloom Bloom, P.C., New Windsor, N.Y. (Peter E. Bloom of counsel), for respondent.

Richard N. Lentino, Middletown, N.Y., Law Guardian for the child.

DAVID S. RITTER, J.P., FRED T. SANTUCCI, WILLIAM C. THOMPSON, LEO F. McGINITY, JJ.


DECISION ORDER

ORDERED that the order is reversed, on the law and the facts, with costs, the father's petition is granted, and the mother's petition is denied as academic.

"`[A] change in custody should be made only if the totality of the circumstances warrants a change that is in the best interests of the child' (Matter of Paul Seth G. v. Antoinette M., 227 A.D.2d 620, 622 ; see also, Eschbach v. Eschbach, 56 N.Y.2d 167 ). Moreover, `[t]he determination of a child's custody by a hearing court is entitled to great weight on appeal, and should not be set aside lightly, as it is to a large extent a matter of the court's discretion, depending heavily upon the Judge's assessment of the credibility of witnesses and the character and temperament of the parties' (Matter of Vernon Mc. v. Brenda N., 196 A.D.2d 823 ). However, that discretion is not absolute and may be set aside where it lacks a sound basis in the record, or is contrary to the weight of the evidence (see, Matter of Darlene T., 28 N.Y.2d 391 ; Young v. Young, 212 A.D.2d 114, 117 )" (Matter of Lopez v. Lopez, 233 A.D.2d 398, 399 ).

We find that custody with the father would be in the child's best interests (see, Matter of Morgan v. Becker, 245 A.D.2d 889 ; Matter of Brown v. Brown, 236 A.D.2d 611 ). The Family Court's determination to the contrary was against the weight of the evidence.

In light of the foregoing, the mother's petition to relocate with the child to Fort Drum, New York, is academic.

RITTER, J.P., SANTUCCI, THOMPSON, and McGINITY, JJ., concur.


Summaries of

Matter of Pignetti v. Maust

Appellate Division of the Supreme Court of New York, Second Department
Mar 9, 2000
270 A.D.2d 274 (N.Y. App. Div. 2000)
Case details for

Matter of Pignetti v. Maust

Case Details

Full title:In the Matter of EMIL MICHAEL PIGNETTI III, appellant, v. SUSAN E. MAUST…

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

Date published: Mar 9, 2000

Citations

270 A.D.2d 274 (N.Y. App. Div. 2000)
703 N.Y.S.2d 531

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