Opinion
No. 2023-02197 Docket Nos. V-9564-20 V-9564-20/21A V-9564-20/21B V-11489-20
03-27-2024
In the Matter of John Trentacoste, respondent, v. Sarah Alward, appellant.
Frederic C. Foster, P.C., Westhampton, NY (Alexandria M. Parker of counsel), for appellant. Abrams Fensterman, LLP, White Plains, NY (Lisa Colosi Florio, Aaron Zucker, and Mark Goreczny of counsel), for respondent.
Frederic C. Foster, P.C., Westhampton, NY (Alexandria M. Parker of counsel), for appellant.
Abrams Fensterman, LLP, White Plains, NY (Lisa Colosi Florio, Aaron Zucker, and Mark Goreczny of counsel), for respondent.
COLLEEN D. DUFFY, J.P., ROBERT J. MILLER, WILLIAM G. FORD, LAURENCE L. LOVE, JJ.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Suffolk County (Kerri N. Lechtrecker, Ct. Atty. Ref.), dated February 7, 2023. The order, insofar as appealed from, after a hearing, awarded the parties joint legal and residential custody of the parties' child and, in effect, equal parenting time, barred the parties from relocating their residences more than 16 road miles from their current locations, and awarded the father final decision-making authority with respect to the child's educational and mental health matters.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The parties, who were never married to each other, are the parents of a son born in 2013. In an order dated February 7, 2023, the Family Court, after a hearing, inter alia, ordered that: (1) the parents shall share joint legal and residential custody of the child and, in effect, equal parenting time, (2) neither party shall relocate his or her residence more than 16 road miles from his or her current location, and (3) the father shall have final decision-making authority with respect to the child's educational and mental health matters and the mother shall have final decision-making authority with respect to the child's medical matters. The mother appeals.
"In a child custody dispute, the court's paramount concern is to determine, under the totality of the circumstances, what is in the best interests of the child" (Matter of Scott v Hendy, 216 A.D.3d 1099, 1100; see Matter of Steingart v Fong, 156 A.D.3d 794, 795). "In determining the child's best interests, the court must consider, among other things, (1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent's relative fitness, including his or her ability to guide the child, provide for the child's overall well being, and foster the child's relationship with the noncustodial parent; and (5) the child's desires" (Matter of Scott v Hendy, 216 A.D.3d at 1100 [internal quotation marks omitted]; see Matter of Estrada v Palacios, 148 A.D.3d 804, 804). "Since custody determinations depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded to the trial court's credibility findings, and such findings will not be disturbed unless they lack a sound and substantial basis in the record" (Matter of Cretella v Stephens, 160 A.D.3d 846, 847; see Matter of Nunez v Lasso, 144 A.D.3d 689, 689).
"Where, as here, a party seeks permission to relocate in the context of a petition seeking an initial custody determination, the strict application of the factors relevant to a relocation petition is not required" (Matter of Lawrence v Mattry, 179 A.D.3d 687, 687-688). "Rather, the relocation is but one factor among many for the Family Court to consider in determining what is in the best interests of the child" (id. at 688; see Matter of Karen H. v Maurice G., 101 A.D.3d 1005, 1006). "The weighing of these factors requires an evaluation of the testimony, character, and sincerity of all the parties involved. Generally, such an evaluation can best be made by the Family Court, which had direct access to the parties and witnesses, and, therefore, deference is accorded to the Family Court's findings in this regard" (Matter of Feery v Feury, 168 A.D.3d 729, 730; see Matter of Tayson v Degraft-Johnson, 157 A.D.3d 703, 704).
Here, the Family Court's determination that it was in the best interests of the child to award the parties joint legal and residential custody of the child and, in effect, equal parenting time has a sound and substantial basis in the record (see Matter of Demeter v Alayon, 90 A.D.3d 1045, 1046). As there is no evidence that the parties are so hostile or antagonistic toward each other that they would be unable to put aside their differences, the court properly awarded the parties joint legal and residential custody and, in effect, equal parenting time (see Matter of Steingart v Fong, 156 A.D.3d 794, 796). For the same reasons, the court properly determined that imposing a distance requirement with respect to relocation was in the best interests of the child (see Lawrence v Mattry, 179 A.D.3d at 688).
There is also a sound and substantial basis in the record for the Family Court's determination that the father should have final decision-making authority with respect to the child's educational and mental health matters (see Matter of Steingart v Fong, 156 A.D.3d at 796; Matter of Hardy v Figueroa, 128 A.D.3d 824, 825-826).
DUFFY, J.P., MILLER, FORD and LOVE, JJ., concur.