Opinion
2014-07-9
In the Matter of Michael CHICHILNITSKIY, petitioner, v. Tatyana FAIMAN, respondent. (Proceeding No. 1) In the Matter of Tatyana Faiman, respondent, v. Michael Chichilnitskiy, appellant. (Proceeding No. 2).
Olga Suslova, Brooklyn, N.Y., for appellant. Janis A. Parazzelli, Floral Park, N.Y., for respondent.
Olga Suslova, Brooklyn, N.Y., for appellant. Janis A. Parazzelli, Floral Park, N.Y., for respondent.
Karen P. Simmons, Brooklyn, N.Y. (Anna Khou and Janet Neustaetter of counsel), attorney for the child.
In related child custody proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Kings County (Ramirez, J.), dated February 11, 2013, which, after a hearing, denied his petition for joint custody of the parties' child and granted the mother's petition for sole legal and physical custody of the parties' child.
ORDERED that the order is affirmed, with costs.
The parties, who were never married to each other, are the parents of a son, born November 29, 2007. The parties lived together at the time the child was born, but approximately six months later, the parties separated and the mother and child left the shared residence. In January 2010, the father filed a petition for joint custody and the mother filed a petition seeking sole custody of the child. After a hearing, the Family Court, inter alia, granted the mother's petition for sole legal and physical custody, and denied the father's petition for joint custody. The father appeals.
“In making an initial custody determination, the court must consider what arrangement is in the best interest of the children under the totality of the circumstances” (Matter of Thorpe v. Homoet, 116 A.D.3d 962, 962, 983 N.Y.S.2d 629). The essential consideration in making an award of 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). Since custody determinations depend to a great extent upon an assessment of the character, credibility, temperament, and sincerity of the parties and witnesses, deference is accorded to the court's findings and such findings will not be disturbed unless they lack a sound and substantial basis in the record ( see Harris v. Harris, 112 A.D.3d 887, 978 N.Y.S.2d 294;Matter of Shannon J. v. Aaron P., 111 A.D.3d 829, 975 N.Y.S.2d 152;see also Eschbach v. Eschbach, 56 N.Y.2d at 174, 451 N.Y.S.2d 658, 436 N.E.2d 1260). Joint custody is appropriate between “relatively stable, amicable parents behaving in mature civilized fashion” ( Braiman v. Braiman, 44 N.Y.2d 584, 589–590, 407 N.Y.S.2d 449, 378 N.E.2d 1019;see Irizarry v. Irizarry, 115 A.D.3d 913, 982 N.Y.S.2d 581;Matter of Lawrence v. Davidson, 109 A.D.3d 826, 971 N.Y.S.2d 62).
Here, contrary to the father's contention, there was a sound and substantial basis in the record to support the Family Court's determination that it was in the best interest of the parties' child to award sole custody to the mother, with the father retaining significant visitation rights ( see Irizarry v. Irizarry, 115 A.D.3d at 914, 982 N.Y.S.2d 581;Matter of Clarke v. Wilson, 110 A.D.3d 995, 995, 973 N.Y.S.2d 574;Matter of Wallace v. Roberts, 105 A.D.3d 1053, 1053, 963 N.Y.S.2d 395). MASTRO, J.P., DICKERSON, HINDS–RADIX and DUFFY, JJ., concur.