Opinion
01-14-2015
In the Matter of Craig A. BOWE, respondent, v. Angella BOWE, appellant. (Proceeding No. 1). In the Matter of Angella Bowe, appellant, v. Craig A. Bowe, respondent. (Proceeding No. 2).
Jay Davis PLLC, Garden City, N.Y., for appellant. Lisa Siano, Merrick, N.Y., for respondent. Gail Jacobs, Great Neck, N.Y., attorney for the child.
Jay Davis PLLC, Garden City, N.Y., for appellant.
Lisa Siano, Merrick, N.Y., for respondent.
Gail Jacobs, Great Neck, N.Y., attorney for the child.
REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.
Appeal from an order of the Family Court, Nassau County (Elaine Jackson Stack, J.H.O.), dated December 13, 2013. The order, after a hearing, granted the father's petition for sole custody of the subject child, and denied the mother's petition for sole custody of the subject child.
ORDERED that the order is affirmed, without costs or disbursements.
The mother and the father each filed petitions for sole custody of their youngest daughter. The mother contends that, during the hearing on the petitions, the Family Court improperly considered a prior Family Court order dated April 24, 2006, awarding the father custody of the parties' eldest child. However, the mother waived any objection to that evidence when her attorney consented to its admission at the hearing. The mother's further contention that the Family Court was biased against her in the conduct of the hearing is unpreserved for appellate review. A party claiming court bias must preserve an objection and move for the court to recuse itself (see Matter of Kimberly Z. [Jason Z.], 88 A.D.3d 1181, 931 N.Y.S.2d 732 ). In any event, when a claim of bias is raised, the "inquiry on appeal is limited to whether the judge's bias, if any, unjustly affected the result to the detriment of the complaining party" (Matter of Davis v. Pignataro, 97 A.D.3d 677, 678, 948 N.Y.S.2d 378 ; see Schwartzberg v. Kingsbridge Hgts.Care
Ctr., Inc., 28 A.D.3d 465, 466, 813 N.Y.S.2d 191 ). Here, the record shows that the Family Court treated the parties fairly and did not have a predetermined outcome of the case in mind during the hearing (see Matter of Davis v. Pignataro, 97 A.D.3d at 678, 948 N.Y.S.2d 378 ; Hoey v. Rawlings, 51 A.D.3d 868, 869, 858 N.Y.S.2d 344 ; Lorenzo v. Mass, Inc., 31 A.D.3d 616, 617, 819 N.Y.S.2d 300 ).
The essential consideration in determining custody is the best interests of the child (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Saravia v. Godzieba, 120 A.D.3d 821, 821–822, 991 N.Y.S.2d 476 ; Matter of Gribeluk v. Gribeluk, 120 A.D.3d 579, 991 N.Y.S.2d 117 ; Matter of Eison v. Eison, 119 A.D.3d 861, 989 N.Y.S.2d 383 ), and no parent has a prima facie right to the custody of the child (see Domestic Relations Law §§ 70[a] ; 240[1][a]; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 447 N.Y.S.2d 893, 432 N.E.2d 765 ; Matter of Wallace v. Roberts, 105 A.D.3d 1053, 963 N.Y.S.2d 395 ; Lionetti v. Lionetti, 100 A.D.3d 971, 954 N.Y.S.2d 463 ). The factors to be considered in making a custody determination include the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide economically for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent (see Matter of Islam v. Lee, 115 A.D.3d 952, 982 N.Y.S.2d 772 ; Matter of Maraj v. Gordon, 102 A.D.3d 698, 957 N.Y.S.2d 717 ; Matter of McGovern v. Lynch, 62 A.D.3d 712, 879 N.Y.S.2d 490 ). The court is to consider the totality of the circumstances, and the existence or absence of any one factor is not determinative (see Eschbach v. Eschbach, 56 N.Y.2d at 174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Maraj v. Gordon, 102 A.D.3d at 698, 957 N.Y.S.2d 717 ; Matter of Blakeney v. Blakeney, 99 A.D.3d 898, 952 N.Y.S.2d 295 ; Pollack v. Pollack, 56 A.D.3d 637, 868 N.Y.S.2d 243 ).
Custody determinations depend to a great extent upon the hearing court's assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties (see Matter of Gribeluk v. Gribeluk, 120 A.D.3d at 579, 991 N.Y.S.2d 117 ; Matter of Weiss v. Rosenthal, 120 A.D.3d 505, 506, 989 N.Y.S.2d 909 ; Matter of Eison v.
Eison, 119 A.D.3d at 861, 989 N.Y.S.2d 383 ). Accordingly, where a court has conducted a complete evidentiary hearing, its custody determination will not be disturbed unless it lacks a sound and substantial basis in the record (see Matter of Saravia v. Godzieba, 120 A.D.3d at 822, 991 N.Y.S.2d 476 ; Matter of Gribeluk v. Gribeluk, 120 A.D.3d at 579, 991 N.Y.S.2d 117 ; Cruz v. Cruz, 118 A.D.3d 780, 987 N.Y.S.2d 109 ).
When the aforementioned factors are applied in this case, it is clear that the Family Court's determination to award sole custody of the subject child to the father has a sound and substantial basis in the record. Accordingly, the determination will not be disturbed.
The mother's remaining contentions are without merit.