Opinion
2020–01419 Index No. 53054/17
12-29-2021
Romell GILLESPY, respondent, v. Betty CEUS, appellant.
Daniel P. Moskowitz, Glen Head, NY, for appellant. Helene Bernstein, Brooklyn, NY, for respondent. Jennifer Marshall, Brooklyn, NY, attorney for the child.
Daniel P. Moskowitz, Glen Head, NY, for appellant.
Helene Bernstein, Brooklyn, NY, for respondent.
Jennifer Marshall, Brooklyn, NY, attorney for the child.
SYLVIA O. HINDS–RADIX, J.P., SHERI S. ROMAN, FRANCESCA E. CONNOLLY, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
In an action for a divorce and ancillary relief, the defendant appeals from an interlocutory judgment of the Supreme Court, Kings County (Jeffrey S. Sunshine, J.), entered November 27, 2019. The interlocutory judgment, insofar as appealed from, upon a decision of the same court dated August 21, 2019, made after a nonjury trial, awarded the plaintiff sole legal and physical custody of the parties’ child.
ORDERED that the interlocutory judgment is affirmed insofar as appealed from, without costs or disbursements. The parties have one child together, born in 2008. In 2017, the plaintiff commenced this action seeking, inter alia, a divorce and sole legal and physical custody of the child. After a nonjury trial on the issue of custody, the Supreme Court, among other things, awarded the plaintiff sole legal and physical custody of the child. The defendant appeals.
"An award of custody must be based upon the best interests of the child, and there is no prima facie right to the custody of the child in either parent" ( Bressler v. Bressler, 122 A.D.3d 659, 659, 996 N.Y.S.2d 160 ). "In determining a child's best interest, the court must consider, among other things, (1) the parental guidance provided by the custodial parent; (2) each parent's ability to provide for the child's emotional and intellectual development; (3) each parent's ability to provide for the child financially; (4) each parent's relative fitness; and (5) the effect an award of custody to one parent might have on the child's relationship with the other parent" ( Matter of Williamson v. Williamson, 182 A.D.3d 604, 605–606, 122 N.Y.S.3d 656 ). "The existence of any one factor cannot be determinative on appellate review since the court is to consider the totality of the circumstances" ( Turisse v. Turisse, 194 A.D.3d 1090, 1092, 149 N.Y.S.3d 469 ). "Inasmuch as a court's custody determination is dependent in large part upon its assessment of the witnesses’ credibility and upon the character, temperament, and sincerity of the parents, the court's exercise of its discretion will not be disturbed if supported by a sound and substantial basis in the record" ( Matter of Carr v. Thomas, 169 A.D.3d 903, 904, 94 N.Y.S.3d 333 ; see Turisse v. Turisse, 194 A.D.3d at 1092, 149 N.Y.S.3d 469 ).
Here, the Supreme Court conducted a nonjury trial on the issue of custody, during which the court observed the demeanor and heard the testimony of the parties and the neutral forensic evaluator. After the nonjury trial, the court determined that the plaintiff provided more guidance and patience and a more consistent and stable home environment than the defendant. Based upon our review of the record, the court's determination awarding sole legal and physical custody to the plaintiff has a sound and substantial basis in the record (see Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Goudreau v. Corvi, 197 A.D.3d 463, 152 N.Y.S.3d 485 ; Turisse v. Turisse, 194 A.D.3d at 1092–1093, 149 N.Y.S.3d 469 ).
HINDS–RADIX, J.P., ROMAN, CONNOLLY and DOWLING, JJ., concur.