Opinion
2013-08621 (Docket Nos. V-24500-12, V-08435-13)
11-12-2014
In the Matter of Clyde McLENNAN, respondent, v. Nakia GORDON, appellant. (Proceeding No. 1) In the Matter of Nakia Gordon, appellant, v. Clyde McLennan, respondent. (Proceeding No. 2).
Geanine Towers, P.C., Brooklyn, N.Y., for appellant. Gail R. Rich, Brooklyn, N.Y., for respondent. Karen P. Simmons, Brooklyn, N.Y. (Saira Wang and Janet Neustaetter of counsel), attorney for the child.
Geanine Towers, P.C., Brooklyn, N.Y., for appellant.
Gail R. Rich, Brooklyn, N.Y., for respondent.
Karen P. Simmons, Brooklyn, N.Y. (Saira Wang and Janet Neustaetter of counsel), attorney for the child.
REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.
Opinion In related child custody proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Kings County (Ramirez, J.), dated July 26, 2013, which, after hearing, granted the father's petition for sole custody of the parties' daughter and denied her cross petition for the same relief.
ORDERED that the order is affirmed, without costs.
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 Saravia v. Godzieba, 120 A.D.3d 821, 991 N.Y.S.2d 476 ; Matter of Gribeluk v. Gribeluk, 120 A.D.3d 579, 991 N.Y.S.2d 117 ; Matter of Eison v. Eison, 119 A.D.3d 861, 989 N.Y.S.2d 383 ), and there is “no prima facie right to the custody of the child in either parent” (Domestic Relations Law §§ 70[a] ; 240[1][a]; see Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 447 N.Y.S.2d 893, 432 N.E.2d 765 ; Matter of Wallace v. Roberts, 105 A.D.3d 1053, 963 N.Y.S.2d 395 ; Lionetti v. Lionetti, 100 A.D.3d 971, 954 N.Y.S.2d 463 ). The factors to be considered in making a custody determination 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 Islam v. Lee, 115 A.D.3d 952, 952, 982 N.Y.S.2d 772 [internal quotation marks omitted]; see Matter of Maraj v. Gordon, 102 A.D.3d 698, 957 N.Y.S.2d 717 ; Matter of McGovern v. Lynch, 62 A.D.3d 712, 879 N.Y.S.2d 490 ). 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 Maraj v. Gordon, 102 A.D.3d at 698, 957 N.Y.S.2d 717 ; Matter of Blakeney v. Blakeney, 99 A.D.3d 898, 952 N.Y.S.2d 295 ; Pollack v. Pollack, 56 A.D.3d 637, 868 N.Y.S.2d 243 ).
Moreover, custody determinations depend 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 Gribeluk v. Gribeluk, 120 A.D.3d at 579, 991 N.Y.S.2d 117 ; Matter of Weiss v. Rosenthal, 120 A.D.3d 505, 989 N.Y.S.2d 909 ; Matter of Eison v. Eison, 119 A.D.3d at 861, 989 N.Y.S.2d 383 ). Accordingly, where a hearing court has conducted a complete evidentiary hearing, its credibility finding must be accorded great weight and its grant of custody will not be disturbed unless it lacks a sound and substantial basis in the record (see Matter of Saravia v. Godzieba, 120 A.D.3d at 821, 991 N.Y.S.2d 476 ; Matter of Gribeluk v. Gribeluk, 120 A.D.3d at 579, 991 N.Y.S.2d 117 ; Matter of Cruz v. Cruz, 118 A.D.3d 780, 987 N.Y.S.2d 109 ).
When the aforementioned factors are applied in this case, the Family Court's determination to grant sole custody of the parties' daughter to the father has a sound and substantial basis in the record. The evidence at the hearing established that the child, who was six years old at the time of the hearing, had been in the father's care since at least February of 2011, after the mother, who lived in Florida, sent her to live with the father, who lived in New York. The evidence further showed that the child was happy and well-adjusted, was close to her father and mother, and was doing satisfactorily in school. In addition, the evidence showed that the father was financially able to provide for the child, had provided a good home environment, had adequately provided for the child's emotional and intellectual development, and had fostered the child's continued relationship with the mother. Accordingly, the Family Court's award of sole custody to the father was not an improvident exercise of discretion and will not be disturbed.