Opinion
06-18-2024
In the Matter of IVAN J., Petitioner–Appellant, v. FELICIA V., Respondent–Respondent.
Daniel P. Moskowitz, Jamaica, for appellant. Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for respondent. George E. Reed, Jr., White Plains, attorney for the children.
Daniel P. Moskowitz, Jamaica, for appellant.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for respondent.
George E. Reed, Jr., White Plains, attorney for the children.
Webber, J.P., Gesmer, Mendez, Rosado, Michael, JJ.
Order, Family Court, New York County (Stephanie Schwartz, J.), entered on or about April 1, 2022, to the extent that it awarded, after a fact-finding hearing, primary physical custody of the subject child S. to respondent mother, with final decision-making authority to petitioner father, unanimously affirmed, without costs. Appeal from so much of the same order insofar as it awarded primary physical custody of the child V. to respondent mother with final decision-making authority to the fa- ther, unanimously dismissed, without costs, as moot.
The appeal from the order insofar as it relates to the older child V. is dismissed because she has turned 18 years old. Accordingly, Family Court lacks jurisdiction to determine custody as to her (Family Ct Act §§ 651, 119[c]).
There is a sound and substantial basis in the record for the court’s determination that S.’s best interest would be served by awarding primary physical custody to the mother (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171–172, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982]; Matter of David H. v. Khalima H., 111 A.D.3d 544, 545, 976 N.Y.S.2d 32 [1st Dept. 2013], lv dismissed. 22 N.Y.3d 1149, 984 N.Y.S.2d 289, 7 N.E.3d 502 [2014]). There is no basis to disturb the court’s credibility determinations (see Matter of Lisa W. v. John M., 142 A.D.3d 879, 879, 38 N.Y.S.3d 148 [1st Dept. 2016], lv denied 28 N.Y.3d 912, 2017 WL 53563 [2017]). The court properly considered the totality of the circumstances and concluded that the best interests of the child would be served if she were to remain with the mother, who had been her primary caretaker since birth (see Matter of Frank G. v. Crystal C., 198 A.D.3d 455, 456, 152 N.Y.S.3d 582 [1st Dept. 2021]). The record shows that the mother was able to provide a stable environment for the child as well as address her educational and medical needs. Family Court appropriately considered the evaluation of the court-appointed forensic evaluator, who testified that the mother was a capable parent (see Matter of Elizabeth S. v. Edgard N., 150 A.D.3d 585, 586, 56 N.Y.S.3d 51 [1st Dept. 2017]).
Contrary to the father’s assertion, the court properly considered the child’s preference, which was to reside with the mother during the week, and, given her age at the time of the in-camera interview, accorded it some weight (see Melissa C.D. v. Rene I.D., 117 A.D.3d 407, 408, 985 N.Y.S.2d 28 [1st Dept. 2014]).
We have considered the father’s remaining arguments and find them unavailing.