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In Re Fayona C., Also Known As Fayona J., Petitioner-Respondent v. Christopher T.

New York Supreme Court Appellate Division, First Department


February 5, 2013

IN RE FAYONA C., ALSO KNOWN AS FAYONA J., PETITIONER-RESPONDENT, --
v.
CHRISTOPHER T., RESPONDENT-APPELLANT.

Matter of Fayona C. v Christopher T.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 5, 2013

Tom, J.P., Sweeny, Moskowitz, Manzanet-Daniels, Gische, JJ.

Order, Family Court, Bronx County (Myrna Martinez-Perez, J.), entered on or about June 17, 2011, which, to the extent appealed from as limited by the briefs, after a fact-finding determination of aggravating circumstances, granted petitioner mother a final five-year order of protection, and modified a prior order of custody and visitation to award her sole legal custody of the subject child and visitation on the third weekend of every month, unanimously affirmed, without costs.

Contrary to appellant father's contention, the Family Court properly determined, in the combined family offense and custody modification order appealed, that a further evidentiary hearing was not necessary because the Court possessed sufficient information to render an informed decision based on its extensive history with the parties and because the father made no further offer of proof that would have affected the outcome (see Matter of James M. v Kevin M., 99 AD3d 911, 913 [2d Dept 2012]; Rodman v Friedman, 33 AD3d 400, 401 [1st Dept 2006], lv dismissed 8 NY3d 895 [2007]).

Moreover, where domestic violence is alleged, "the court must consider the effect of such domestic violence upon the best interests of the child" (Domestic Relations Law § 240[1]). Upon weighing the appropriate factors, the Family Court correctly determined that the best interests of the child here would be served by granting the mother custody (see Matter of Gant v Higgins, 203 AD2d 23, 24 [1st Dept 1994]; Matter of Rosiana C. v Pierre S., 191 AD2d 432 [2d Dept 1993]). Although appellant denied during the fact-finding hearing on the family offense petition that he had committed acts of domestic violence and/or verbal abuse that were directed at the mother in front of the child, the Family Court resolved the conflicting testimony in favor of the mother, and on this record, there is no basis to disturb the court's credibility determinations (see Matter of Lisa S. v William V., 95 AD3d 666 [1st Dept 2012]).

We have considered appellant's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 5, 2013

CLERK

20130205

© 1992-2013 VersusLaw Inc.



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