Opinion
April 25, 1994
Appeal from the Family Court, Westchester County (Braslow, J.).
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
In cases where a change of custody is sought, the relief should be granted when, in the court's discretion, "the totality of the circumstances * * * warrants its doing so in the best interests of the child" (Friederwitzer v Friederwitzer, 55 N.Y.2d 89, 96). Although the authority of this Court in matters of custody is as broad as that of the Trial Judge, custody determinations are ordinarily a matter of discretion for the hearing court (see, Gage v Gage, 167 A.D.2d 332), and on appeal great deference is to be accorded the Trial Judge's ability to observe the demeanor of the witnesses (see, Matter of Louise E.S. v W. Stephen S., 64 N.Y.2d 946).
In the present case, we find that the Family Court properly determined that it was in the best interests of the appellant that he remain in the custody of his mother (see, Domestic Relations Law § 70; Eschbach v Eschbach, 56 N.Y.2d 167, 171). Priority should usually be given to the parent who was awarded custody by the court or to the parent who obtained custody by voluntary agreement (see, Matter of Nehra v Uhlar, 43 N.Y.2d 242, 251; Matter of Krebsbach v Gallagher, 181 A.D.2d 363, 365). Here, the record demonstrates that the mother was better able to provide for the appellant's emotional and intellectual needs and provided better parental guidance (see, Eschbach v Eschbach, supra, at 172). Moreover, the father repeatedly denigrated the mother in the presence of the appellant (see, Janecka v Franklin, 150 A.D.2d 755, 757). Although the appellant has indicated a strong desire to live with his father, that is merely one factor to be considered and is not determinative (see, Eschbach v Eschbach, supra, at 173). Thompson, J.P., Balletta, Pizzuto and Joy, JJ., concur.