Opinion
2013-01-9
In the Matter of Leslie Tyrone MARAJ, appellant, v. Natalie GORDON, respondent.
Cheryl Charles–Duval, Brooklyn, N.Y., for appellant. Edward E. Caesar, Brooklyn, N.Y., for respondent.
Cheryl Charles–Duval, Brooklyn, N.Y., for appellant. Edward E. Caesar, Brooklyn, N.Y., for respondent.
Karen P. Simmons, Brooklyn, N.Y. (Karin Wolfe and Janet Neustaetter of counsel), attorney for the child.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, THOMAS A. DICKERSON, and PLUMMER E. LOTT, JJ.
In a child custody proceeding pursuant to Family Court Act article 6, the father appeals, as limited by his brief, from so much of an order of the Family Court, Kings County (O'Shea, J.), dated February 14, 2011, as, after hearing, awarded sole custody of the parties' son to the mother.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
The essential consideration in determining 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;Matter of Carrasquillo v. Cora, 60 A.D.3d 852, 853, 876 N.Y.S.2d 436;Gurewich v. Gurewich, 43 A.D.3d 458, 841 N.Y.S.2d 143). The factors to be considered in making a custody determination include “ ‘the parental guidance provided by the custodial parent, each parent's ability to provide for the child's emotional and intellectual development, each parent's ability to provide for the child financially, the relative fitness of each parent, and the effect an award of custody to one parent might have on the child's relationship with the other parent’ ” ( Craig v. Williams–Craig, 61 A.D.3d 712, 712, 876 N.Y.S.2d 650, quoting Matter of Berrouet v. Greaves, 35 A.D.3d 460, 461, 825 N.Y.S.2d 719;see Matter of McGovern v. Lynch, 62 A.D.3d 712, 712, 879 N.Y.S.2d 490;Carrasquillo v. Cora, 60 A.D.3d 852, 876 N.Y.S.2d 436). The “existence or absence of any one factor cannot be determinative on appellate review since the court is to consider the totality of the circumstances” ( Eschbach v. Eschbach, 56 N.Y.2d at 174, 451 N.Y.S.2d 658, 436 N.E.2d 1260;see Pollack v. Pollack, 56 A.D.3d 637, 638, 868 N.Y.S.2d 243; Matter of Bowe v. Robinson, 23 A.D.3d 555, 557, 805 N.Y.S.2d 91;Kaplan v. Kaplan, 21 A.D.3d 993, 995, 801 N.Y.S.2d 391).
Moreover, where, as here, a complete evidentiary hearing has been held on the issue of custody, any determination depends to a great extent upon the hearing court's assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties ( see Matter of Rudolph v. Armstead, 61 A.D.3d 979, 980, 876 N.Y.S.2d 906;Matter of Gilmartin v. Abbas, 60 A.D.3d 1058, 1058, 877 N.Y.S.2d 347;Matter of Bonilla v. Amaya, 58 A.D.3d 728, 729, 872 N.Y.S.2d 465). Accordingly, the credibility findings of the hearing court will be accorded great weight and its award of custody will not be disturbed unless it lacks a sound and substantial basis in the record ( see Matter of Jara v. Rivera, 60 A.D.3d 680, 680, 876 N.Y.S.2d 66;Matter of Francis v. Cox, 57 A.D.3d 776, 776–777, 869 N.Y.S.2d 589;Matter of Rolon v. Medina, 56 A.D.3d 676, 677, 868 N.Y.S.2d 226).
Here, the Family Court's determination to award sole custody of the child to the mother has a sound and substantial basis in the record. The evidence at the hearing established, inter alia, that the child, who was eight years old at the time of the hearing and who had been in the mother's care since he was born, was happy and well-adjusted, and was close to his brother and sister, who also lived with the mother. In addition, the evidence showed that the mother was best able to provide for the child, and was adequately providing for the child's emotional and intellectual development. Accordingly, the Family Court's award of custody to the mother has a sound and substantial basis in the record and will not be disturbed ( see Gurewich v. Gurewich, 43 A.D.3d at 459, 841 N.Y.S.2d 143).