Opinion
7746 7747
11-29-2018
In re BUNITA B., Petitioner–Appellant, v. MARK P., Respondent–Respondent. In re Mark P., Petitioner–Respondent, v. Bunita B., Respondent–Appellant.
Douglas H. Reiniger, New York, for appellant. Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for respondent. Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the child.
Douglas H. Reiniger, New York, for appellant.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for respondent.
Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the child.
Richter, J.P., Manzanet–Daniels, Gische, Kapnick, Gesmer, JJ.
Order, Family Court, New York County (Christopher W. Coffey, Referee), entered on or about March 9, 2017, which, after a hearing, inter alia, denied the mother's petition for custody of the subject child and granted respondent father's petition awarding him sole legal and physical custody of the child, unanimously affirmed, without costs.
A sound and substantial basis exists in the record for the court's determination, which was made after a full evidentiary hearing, that the child's best interests will be served by awarding sole legal and physical custody to the father (see generally Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ). After the parents separated, ACS removed the child from the mother's care. Following a time in foster care, in 2012, the child was released by ACS to the father's care. The record shows that the father was better able to provide a stable environment for the child, because he had lived in the same residence for many years, and had been the child's primary caregiver, after her return from foster care (see Matter of David C. v. Laniece J., 102 A.D.3d 542, 958 N.Y.S.2d 145 [1st Dept. 2013] ). The father attended to all of the child's medical and educational needs, whereas the mother had no involvement with the child's medical care or education (see Matter of Celina S. v. Donald S., 133 A.D.3d 471, 20 N.Y.S.3d 355 [1st Dept. 2015] ). The court considered all of the relevant factors, including the father's admitted history of domestic violence (see Matter of Kougne T. v. Mamadou D., 133 A.D.3d 455, 18 N.Y.S.3d 857 [1st Dept. 2015] ), but found that there had been no further instances of domestic violence after 2012. The court also considered and weighed evidence that the mother's future living arrangements were "in flux" because she was looking to relocate with the child.
The court providently exercised its discretion in declining to conduct an in camera interview of the child because the child's attorney stipulated that the child loved both parents and had no preference as to which parent she wanted to live with (see Matter of Mohamed Z.G. v. Mairead P.M., 129 A.D.3d 516, 517, 11 N.Y.S.3d 146 [1st Dept. 2015], lv denied 26 N.Y.3d 906, 2015 WL 5552728 [2015] ). The child's purported change in her preference after the hearing from being neutral to wanting to live with the mother does not warrant a different determination, because her counsel does not explain what caused the child's change of heart and in light of the potential that the child has been influenced (see Zelnik v. Zelnik, 196 A.D.2d 700, 601 N.Y.S.2d 701 [1st Dept. 1993] ).
The mother failed to preserve her contention that the Family Court harbored a bias against her, and we decline to review it in the interest of justice. In any event, there is no support in the record for such a claim (see Matter of Bianca J. v. Dwayne C.A., 136 A.D.3d 450, 23 N.Y.S.3d 892 [1st Dept. 2016] ).
We have considered the mother's remaining arguments and find them unavailing.