Opinion
1257 CAF 14-01014
11-20-2015
In the Matter of Brandon P. SAUNDERS, Petitioner–Respondent, v. Jennifer M. STULL, Respondent–Appellant.
Law Office of Wendy Lee Gould, Bath (Ruth A. Chaffee of Counsel), for Respondent–Appellant. Shults and Shults, Hornell (Joan Merry of Counsel), for Petitioner–Respondent. Lyle T. Hajdu, Attorney for the Child, Lakewood.
Law Office of Wendy Lee Gould, Bath (Ruth A. Chaffee of Counsel), for Respondent–Appellant.
Shults and Shults, Hornell (Joan Merry of Counsel), for Petitioner–Respondent.
Lyle T. Hajdu, Attorney for the Child, Lakewood.
Opinion
MEMORANDUM:
In this proceeding pursuant to Family Court Act article 6, respondent mother appeals from an order that, inter alia, granted petitioner father sole custody of the parties' child, with visitation to the mother. The mother contends that Family Court did not give proper consideration to the father's history of domestic violence. We reject that contention. The record establishes that the court fully considered the evidence that the father committed an act of domestic violence against the mother (see Domestic Relations Law § 2401[a]; Matter of LaMay v. Staves, 128 A.D.3d 1485, 1486, 8 N.Y.S.3d 811), and we agree with the court that it is in the child's best interests to remain in the custody of the father despite the evidence of domestic violence (see LaMay, 128 A.D.3d at 1486, 8 N.Y.S.3d 811; Matter of Booth v. Booth, 8 A.D.3d 1104, 1105, 778 N.Y.S.2d 643, lv. denied 3 N.Y.3d 607, 785 N.Y.S.2d 25, 818 N.E.2d 667; see also Matter of Viscuso v. Viscuso, 129 A.D.3d 1679, 1681–1682, 12 N.Y.S.3d 684).
Contrary to the mother's further contentions, the court properly determined that an award of sole custody to the father was in the child's best interests. “ ‘Generally, a court's determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record’ ” (Matter of Dubuque v. Bremiller, 79 A.D.3d 1743, 1744, 913 N.Y.S.2d 855). Here, the court's determination that the father is better able to provide for the child's needs is supported by a sound and substantial basis in the record and thus will not be disturbed (see Matter of Flint v. Ely, 96 A.D.3d 1681, 1682, 947 N.Y.S.2d 735; Matter of Fox v. Coleman, 93 A.D.3d 1187, 1188, 939 N.Y.S.2d 786). Although the award of sole custody to the father will limit the amount of time the child will spend with his half-siblings, and “sibling relationships should not be disrupted unless there is some overwhelming need to do so” (Matter of O'Connell v. O'Connell, 105 A.D.3d 1367, 1368, 963 N.Y.S.2d 789 [internal quotation marks omitted] ), we note that the visitation schedule fashioned by the court is a countervailing benefit inasmuch as the child will be able to spend a substantial amount of time with his half-siblings during the summer (see generally id. at 1368–1369, 963 N.Y.S.2d 789). Moreover, we conclude that sole custody to the father is the most appropriate result in this case in light of the evidence at the hearing that the mother was attempting to exclude the father from the child's life while the father was willing to foster a relationship between the child and the mother (see Matter of McTighe v. Pearl, 8 A.D.3d 951, 951–952, 778 N.Y.S.2d 588, lv. dismissed 4 N.Y.3d 739, 790 N.Y.S.2d 651, 824 N.E.2d 52; Matter of Erck v. Erck, 147 A.D.2d 921, 921–922, 537 N.Y.S.2d 367; see generally Matter of Koch v. Koch, 121 A.D.3d 1201, 1203, 993 N.Y.S.2d 794).
The mother further contends that the court erred in determining that portions of her hearing testimony were not credible. We reject that contention. The court's “ ‘determination regarding the credibility of witnesses is entitled to great weight on appeal, and will not be disturbed if supported by the record’ ” (Matter of Burke H. [Tiffany H.], 117 A.D.3d 1568, 1568, 984 N.Y.S.2d 917), and we conclude that the court's credibility determinations are supported by the record.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.