Opinion
No. 734 CAF 21-01134
09-30-2022
IN THE MATTER OF EBONY RILEY, PETITIONER-APPELLANT, v. JOSHUA KIDNEY, RESPONDENT-RESPONDENT.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR PETITIONER-APPELLANT. TED A. BARRACO, PITTSFORD, FOR RESPONDENT-RESPONDENT. MARYBETH D. BARNET, MIDDLESEX, ATTORNEY FOR THE CHILD.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR PETITIONER-APPELLANT.
TED A. BARRACO, PITTSFORD, FOR RESPONDENT-RESPONDENT.
MARYBETH D. BARNET, MIDDLESEX, ATTORNEY FOR THE CHILD.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, WINSLOW, AND BANNISTER, JJ.
Appeal from an order of the Family Court, Monroe County (Fatimat O. Reid, J.), entered July 21, 2021 in a proceeding pursuant to Family Court Act article 6. The order, among other things, awarded respondent sole custody and primary physical residency of the subject child.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 6, petitioner mother appeals from an order that, inter alia, modified a prior custody order by granting respondent father sole custody of the parties' daughter. We affirm.
The mother's contention that Family Court should have ordered a child protective investigation of the father pursuant to Family Court Act § 1034 is unpreserved for our review (see Matter of Kakwaya v Twinamatsiko, 159 A.D.3d 1590, 1591 [4th Dept 2018], lv denied 31 N.Y.3d 911 [2018]; Matter of Canfield v McCree, 90 A.D.3d 1653, 1654 [4th Dept 2011]; see also Matter of Lydia C. [Albert C.], 89 A.D.3d 1434, 1437 [4th Dept 2011]).
We reject the mother's further contention that the court erred in granting the father sole custody of the subject child. "[A] court's determination regarding custody... issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight" (Matter of Saunders v Stull, 133 A.D.3d 1383, 1383 [4th Dept 2015]; see Matter of Dubuque v Bremiller, 79 A.D.3d 1743, 1744 [4th Dept 2010]) and "will not be disturbed as long as it is supported by a sound and substantial basis in the record" (Sheridan v Sheridan, 129 A.D.3d 1567, 1568 [4th Dept 2015]; see Dubuque, 79 A.D.3d at 1744). Here, the court's determination that the father is better able to provide for the child's needs is supported by the requisite sound and substantial basis in the record and thus will not be disturbed (see Matter of Stilson v Stilson, 93 A.D.3d 1222, 1223 [4th Dept 2012]).