Opinion
2019–01514 Docket Nos. V–10851–15, V–10852–15, V–26450–15, V–26451–15
10-16-2019
In the Matter of Terrell BROWN, Respondent, v. Marilyn PEREZ, Appellant. (Proceeding Nos. 1 and 2) In the Matter of Marilyn Perez, Appellant, v. Terrell Brown, Respondent. (Proceeding Nos. 3 and 4)
Richard Cardinale, Brooklyn, NY, for appellant. Kenneth M. Tuccillo, Hastings on Hudson, NY, for respondent. Janet Neustaetter, Brooklyn, N.Y. (Louise Feld of counsel), attorney for the children.
Richard Cardinale, Brooklyn, NY, for appellant.
Kenneth M. Tuccillo, Hastings on Hudson, NY, for respondent.
Janet Neustaetter, Brooklyn, N.Y. (Louise Feld of counsel), attorney for the children.
MARK C. DILLON, J.P., JOSEPH J. MALTESE, COLLEEN D. DUFFY, BETSY BARROS, JJ.
DECISION & ORDER ORDERED that the order is affirmed, without costs or disbursements.
The parties, who were never married, are the parents of two children, who were born in September 2008 and April 2010, respectively. Both parties petitioned for sole legal and residential custody of the children. After a hearing at which the parties and a court-appointed forensic expert testified, the Family Court awarded the father sole legal and residential custody of the children, with parental access to the mother. The mother appeals.
"The court's paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child" ( Matter of Turcios v. Cordero , 173 A.D.3d 1048, 1049, 100 N.Y.S.3d 569, citing Eschbach v. Eschbach , 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). "The factors to be considered in determining the custody arrangement that is in the child's best interests 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 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" ( Matter of Wood v. Lozada , 152 A.D.3d 531, 532, 58 N.Y.S.3d 147 [internal citations and quotation marks omitted] ). "The court's determination depends to a great extent upon its assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parents" ( Matter of Toro v. Williams , 167 A.D.3d 634, 635, 89 N.Y.S.3d 228 [internal quotation marks omitted] ). "The credibility findings of the court are entitled to great weight and should not be disturbed unless they lack a sound and substantial basis in the record" ( id. at 635, 89 N.Y.S.3d 228 ; see Eschbach v. Eschbach , 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ).
Here, the testimony adduced at the hearing established that the mother willfully interfered with the father's relationship with the children by relocating the children to Florida against his wishes (see Matter of Plaza v. Plaza , 305 A.D.2d 607, 607, 759 N.Y.S.2d 368 ). Further, the mother's conduct resulted in an unstable living situation for the children, whom she abruptly relocated back to New York when a warrant was issued for her arrest in Florida (see Hogan v. Hogan , 159 A.D.3d 679, 681, 71 N.Y.S.3d 601 ; cf. Matter of Jones v. Pagan , 96 A.D.3d 1058, 1058–1059, 947 N.Y.S.2d 580 ). The record also reflects that, since returning to New York, the children are doing well in the father's care, and have a stable and appropriate daily routine (see Bourne v. Bristow , 66 A.D.3d 621, 622, 886 N.Y.S.2d 502 ; Matter of Plaza v. Plaza , 305 A.D.2d at 607, 759 N.Y.S.2d 368 ). Moreover, the Family Court's determination to award sole legal and residential custody to the father was supported by the recommendations of the court-appointed forensic expert, which, while not determinative, was entitled to some weight (see Matter of Dante v. Dante , 170 A.D.3d 829, 831, 93 N.Y.S.3d 892 ; Matter of Angelina L.C. [Michael C.—Patricia H.-C.] , 110 A.D.3d 793, 796, 973 N.Y.S.2d 668 ). Consequently, the court's determination that the children's best interests would be served by awarding sole legal and residential custody to the father has a sound and substantial basis in the record and will not be disturbed (see Matter of Turcios v. Cordero , 173 A.D.3d at 1049, 100 N.Y.S.3d 569 ; Matter of Toro v. Williams , 167 A.D.3d at 635–636, 89 N.Y.S.3d 228 ; Hogan v. Hogan , 159 A.D.3d at 681, 71 N.Y.S.3d 601 ).
DILLON, J.P., MALTESE, DUFFY and BARROS, JJ., concur.