Opinion
9843–9843A
07-09-2019
In re BELINDA J., Petitioner-Respondent, v. TYRONE J., Respondent-Appellant. Bethany J., et al., Nonparty Appellants.
Richard L. Herzfeld, New York, for Tyrone J., appellant. Kenneth M. Tuccillo, Hastings on Hudson, attorney for the children appellants. Andrew J. Baer, New York, for respondent.
Richard L. Herzfeld, New York, for Tyrone J., appellant.
Kenneth M. Tuccillo, Hastings on Hudson, attorney for the children appellants.
Andrew J. Baer, New York, for respondent.
Sweeny, J.P., Manzanet–Daniels, Webber, Gesmer, Kern, JJ.
The record supports the court's determination, after a hearing, where it had the opportunity to evaluate the testimony and credibility of the parties, to grant the mother custody of the parties' children ( Eschbach v. Eschbach, 56 N.Y.2d 167, 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ). The court appropriately considered the fact that a final order of protection had been issued against the father based on allegations of domestic violence against the mother ( Domestic Relations Law § 240[1][a] ), as the issuance of such an order required proof of domestic violence by a "fair preponderance of the evidence" ( Family Court Act § 832 ). The court also took appropriate consideration of the children's expressed preferences ( Eschbach, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ), which are entitled to consideration, but are not determinative ( William–Torand v. Torand, 73 A.D.3d 605, 606, 901 N.Y.S.2d 601 [1st Dept. 2010] ).
We have considered the appellants' remaining contentions and find them unavailing.