Opinion
2013-08507 2013-08508 Docket Nos. V-1096-09 V-1101-09.
12-30-2015
In the Matter of Janique HUTCHINSON, respondent, v. Phillip JOHNSON, appellant. (Proceeding No. 1) In the Matter of Phillip Johnson, appellant, v. Janique Hutchinson, respondent. (Proceeding No. 2).
David Laniado, Cedarhust, N.Y., for appellant. Jeffrey C. Bluth, Brooklyn, N.Y., for respondent. Leighton M. Jackson, New York, N.Y., attorney for the child.
David Laniado, Cedarhust, N.Y., for appellant.
Jeffrey C. Bluth, Brooklyn, N.Y., for respondent.
Leighton M. Jackson, New York, N.Y., attorney for the child.
Opinion
Appeals from (1) a decision of the Family Court, Queens County (Margaret M. Mulrooney, Ct.Att.Ref.), dated August 8, 2013, and (2) an order of that court, also dated August 8, 2013. The order, after a hearing and upon the decision, insofar as appealed from, in effect, granted the mother's petition for sole legal and physical custody of the subject child and denied the father's petition for sole legal and physical custody of the subject child.
ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718); and it is further,
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
The parents of the subject child each sought custody of the child. After a hearing, the Family Court granted the mother's petition for sole legal and physical custody of the child, and denied the father's petition for sole legal and physical custody of the child.
In custody cases, the paramount concern is the best interests of the child under the totality of the circumstances (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171–173, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Musachio v. Musachio, 53 A.D.3d 600, 601–602, 862 N.Y.S.2d 376; Mohen v. Mohen, 53 A.D.3d 471, 472–473, 862 N.Y.S.2d 75). In making a determination as to what custody arrangement is in the child's best interest, the court should consider several factors. These factors 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” (Miller v. Pipia, 297 A.D.2d 362, 364, 746 N.Y.S.2d 729; see Mohen v. Mohen, 53 A.D.3d at 472–473, 862 N.Y.S.2d 75). The court should also consider the child's wishes, weighed in light of the age and maturity of the child (see Eschbach v. Eschbach, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Matter of Langlaise v. Sookhan, 48 A.D.3d 685, 850 N.Y.S.2d 917). In custody disputes, the opinions of forensic experts should “not be readily set aside” unless contradicted by the record (Bains v. Bains, 308 A.D.2d 557, 558, 764 N.Y.S.2d 721; see Young v. Young, 212 A.D.2d 114, 628 N.Y.S.2d 957).
A custody determination depends greatly upon an assessment of the character and credibility of the parties and witnesses (see Eschbach v. Eschbach, 56 N.Y.2d at 173–174, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Matter of Perez v. Martinez, 52 A.D.3d 518, 519, 860 N.Y.S.2d 128; Matter of Langlaise v. Sookhan, 48 A.D.3d at 685, 850 N.Y.S.2d 917). The hearing court's credibility findings are generally accorded great deference on appeal, and its determination “should not be disturbed unless it lacks a sound and substantial basis in the record” (Matter of Perez v. Martinez, 52 A.D.3d at 519, 860 N.Y.S.2d 128; see Eschbach v. Eschbach, 56 N.Y.2d at 173–174, 451 N.Y.S.2d 658, 436 N.E.2d 1260).
Under the totality of the circumstances presented here, the Family Court did not improvidently exercise its discretion in awarding sole legal and physical custody of the subject child to the mother (see Matter of Florio v. Niven, 123 A.D.3d 708, 710–711, 997 N.Y.S.2d 728; Matter of Felty v. Felty, 108 A.D.3d 705, 969 N.Y.S.2d 557; see also Matter of Salvati v. Salvati, 221 A.D.2d 541, 543, 633 N.Y.S.2d 819).