Opinion
2012-05-8
In the Matter of Catherine OPRAY, respondent, v. Patrick FITZHARRIS, appellant.
Steven A. Feldman, Uniondale, N.Y. (Arza Feldman of counsel), for appellant. Robin N. Guttman, Melville, N.Y., for respondent.
Steven A. Feldman, Uniondale, N.Y. (Arza Feldman of counsel), for appellant. Robin N. Guttman, Melville, N.Y., for respondent.
Diane B. Groom, Central Islip, N.Y., attorney for the children.
PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and LEONARD B. AUSTIN, JJ.
In a child custody proceeding pursuant to Family Court Act article 6, the father appeals, as limited by his brief, from so much of an order of the Family Court, Suffolk County (Lechtrecker, Ct. Atty. Ref.), dated December 21, 2010, as, after a hearing, in effect, awarded custody of the subject children to the mother.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
“In adjudicating custody and visitation rights, the most important factor to be considered is the best interests of the child” (Matter of Awan v. Awan, 63 A.D.3d 733, 734, 880 N.Y.S.2d 683;see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260). “Factors to be considered in determining those best interests include the parental guidance provided by the custodial parent, each parent's ability to provide for the child's emotional and intellectual development, each parent's ability to provide for the child financially, the relative fitness of each parent, and the effect an award of custody to one parent might have on the child's relationship with the other parent” (Matter of Berrouet v. Greaves, 35 A.D.3d 460, 461, 825 N.Y.S.2d 719;see Eschbach v. Eschbach, 56 N.Y.2d at 172–173, 451 N.Y.S.2d 658, 436 N.E.2d 1260;Matter of Carrasquillo v. Cora, 60 A.D.3d 852, 853, 876 N.Y.S.2d 436). Stability and the child's desires are also relevant considerations ( see Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 94, 447 N.Y.S.2d 893, 432 N.E.2d 765). “Since custody determinations depend 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” (Matter of Conforti v. Conforti, 46 A.D.3d 877, 877–878, 848 N.Y.S.2d 359).
“[S]hared responsibility for and control of the child's upbringing is not properly ordered where, as here, the parents have evidenced an inability to cooperate on matters concerning the child” ( Bliss v. Ach, 56 N.Y.2d 995, 998, 453 N.Y.S.2d 633, 439 N.E.2d 349;see Braiman v. Braiman, 44 N.Y.2d 584, 407 N.Y.S.2d 449, 378 N.E.2d 1019). Here, contrary to the father's contention, the Family Court's determination that an award of sole legal custody to the mother was in the best interests of the children had a sound and substantial basis in the record ( see Matter of Nell v. Nell, 87 A.D.3d 541, 542, 928 N.Y.S.2d 312;Matter of Gorniok v. Zeledon–Mussio, 82 A.D.3d 767, 768, 918 N.Y.S.2d 516;Matter of O'Connell v. McDermott, 80 A.D.3d 701, 701–702, 915 N.Y.S.2d 143).
The father's remaining contentions are either unpreserved for appellate review or without merit.