Opinion
2015-04884, Docket Nos. V-9415-12, V-10689-12.
04-20-2016
In the Matter of Yoonsson V. HUARINGA, respondent, v. Iris CAMARGO, appellant.
John C. Macklin, New Hyde Park, NY, for appellant. Olga J. Rodriguez, Forest Hills, NY, for respondent.
John C. Macklin, New Hyde Park, NY, for appellant.
Olga J. Rodriguez, Forest Hills, NY, for respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, and HECTOR D. LaSALLE, JJ.
Opinion Appeal from an order of the Family Court, Queens County (Dennis Lebwohl, J.), dated June 5, 2015. The order, insofar as appealed from, in effect, confirmed a report of a Referee (Francine Seiden, Ct.Atty.Ref.), in effect, recommending, after a hearing, that custody of the subject child be awarded to the father, with visitation to the mother.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
“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 Chamas v. Carino, 119 A.D.3d 564, 564, 987 N.Y.S.2d 871 [internal quotation marks omitted]; see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). “Factors to be considered in determining the child's best interest 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 Realbuto v. Butta, 134 A.D.3d 1041, 1042, 21 N.Y.S.3d 690 ; see Matter of Elliott v. Felder, 69 A.D.3d 623, 623, 892 N.Y.S.2d 491 ). “ ‘Moreover, if domestic violence is proved, the court must consider its effects on the child’ ” (Matter of Howard E.I. v. Sandra I., 108 A.D.3d 715, 716, 969 N.Y.S.2d 551, quoting Matter of Supangkat v. Torres, 101 A.D.3d 889, 890, 954 N.Y.S.2d 915 ; see Pierre–Paul v. Boursiquot, 74 A.D.3d 935, 936, 903 N.Y.S.2d 94 ). Since custody determinations rely “to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded to the [trial] court's findings, which will not be disturbed unless lacking a sound and substantial basis in the record” (Matter of Vasquez v. Ortiz, 77 A.D.3d 962, 962–963, 909 N.Y.S.2d 155 ). Here, the mother failed to prove that the father had engaged in domestic violence (see Matter of Howard E.I. v. Sandra I., 108 A.D.3d at 716, 969 N.Y.S.2d 551 ; Pierre–Paul v. Boursiquot, 74 A.D.3d at 936, 903 N.Y.S.2d 94 ). In addition, the testimony at the hearing demonstrated that, before custody was temporarily awarded to the father during the proceedings, the mother willfully interfered with the father's right to visitation by failing to make the child available for court-ordered visits (see Matter of Vasquez v. Ortiz, 77 A.D.3d at 963, 909 N.Y.S.2d 155 ). Since the father has had custody, he has consistently made the child available for the mother's visitation (see Matter of DeViteri v. Saldana, 95 A.D.3d 1221, 1222, 944 N.Y.S.2d 635 ; Matter of Gasby v. Chung, 88 A.D.3d 709, 710, 930 N.Y.S.2d 471 ). Other evidence adduced at the hearing established that the father has provided a suitable and stable home environment and that the child is thriving under his care (see Matter of Chamas v. Carino, 119 A.D.3d at 565, 987 N.Y.S.2d 871 ). Accordingly, the Family Court's determination that the child's best interests would be served by an award of custody to the father is supported by a sound and substantial basis in the record (see Matter of Realbuto v. Butta, 134 A.D.3d at 1042, 21 N.Y.S.3d 690; Matter of Elliott v. Felder, 69 A.D.3d at 623, 892 N.Y.S.2d 491 ).