Opinion
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.
MEMORANDUM AND ORDER 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, 72 N.Y.S.3d 739 [4th Dept. 2018], lv denied 31 N.Y.3d 911, 2018 WL 3118124 [2018] ; Matter of Canfield v. McCree , 90 A.D.3d 1653, 1654, 935 N.Y.S.2d 812 [4th Dept. 2011] ; see also Matter of Lydia C. [Albert C.] , 89 A.D.3d 1434, 1437, 933 N.Y.S.2d 147 [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, 20 N.Y.S.3d 824 [4th Dept. 2015] ; see Matter of Dubuque v. Bremiller , 79 A.D.3d 1743, 1744, 913 N.Y.S.2d 855 [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, 12 N.Y.S.3d 434 [4th Dept. 2015] ; see Dubuque , 79 A.D.3d at 1744, 913 N.Y.S.2d 855 ). 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, 940 N.Y.S.2d 426 [4th Dept. 2012] ).