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In re Santano

Supreme Court of New York, Second Department

May 29, 2013

In the Matter of Sean Santano, appellant,
v.
Suzette Cezair, respondent. (Proceeding No. 1) In the Matter of Suzette Cezair, respondent,
v.
Sean Santano, appellant. (Proceeding No. 2) Docket Nos. V-20544-10, V-21539-10

David Laniado, Cedarhurst, N.Y., for appellant.

Louisa Floyd, Brooklyn, N.Y., for respondent.

Karen P. Simmons, Brooklyn, N.Y. (Tammy Linn and Janet Neustaetter of counsel), attorney for the child.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, THOMAS A. DICKERSON, JEFFREY A. COHEN, JJ.

DECISION & ORDER

In related custody and visitation proceedings pursuant to Family Court Act article 6, the father appeals, as limited by his brief, from so much of an order of the Family Court, Kings County (McElrath, J.), dated April 19, 2012, as, after a hearing, denied that branch of the father's petition which was for an award of sole physical custody of the subject child, granted that branch of the mother's separate petition which was for an award of primary physical custody of the subject child, and awarded primary physical custody to the mother.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The parties, who never married, have one child in common. Throughout the parties' relationship, and after it ended, the mother lived with the maternal grandparents and was dependent on them for support of the child and herself. When the child was almost three years old, the maternal grandparents moved from Brooklyn to Philadelphia, and the mother and the child moved with them. Up to that time, neither party had sought any formal custody or visitation determination. Prompted by the move, however, the father, who had previously enjoyed substantial, regular parenting time with the child, filed a petition seeking custody. The mother filed a separate petition. After a hearing, the Family Court awarded the parties joint legal custody, with primary physical custody to the mother. The father appeals from so much of the order as denied that branch of his petition which was for an award of sole physical custody, and awarded the mother primary physical custody.

The best interests of the child is the most important consideration in determining custody and visitation (see Eschbach v Eschbach, 56 N.Y.2d 167, 171; Matter of Jules v Corriette, 76 A.D.3d 1016, 1017), and the hearing court is to make that determination based on all the relevant circumstances (see Kaplan v Kaplan, 21 A.D.3d 993, 994-995). In our review of that determination, we accord considerable deference to the hearing court's assessment of the parties, inasmuch as the assessment rests on that court's superior position to evaluate the witnesses' demeanor and credibility (see id.; Miller v Pipia, 297 A.D.2d 362, 364).

Although in this case the mother's relocation to Philadelphia precipitated the commencement of the proceedings, the matter concerns an initial custody determination, so the strict application of the factors applicable to relocation petitions (see Matter of Tropea v Tropea, 87 N.Y.2d 727) is not required (see Matter of Saperston v Holdaway, 93 A.D.3d 1271, 1272; Matter of Lynch v Gillogly, 82 A.D.3d 1529, 1530). The mother's relocation, therefore, was but one factor for the hearing court to consider in determining what is in the child's best interest (see Matter of Saperston v Holdaway, 93 A.D.3d at 1272). The hearing court's determination has a "sound and substantial" basis in the record (Prohaszka v Prohaszka, 103 A.D.3d 617, 618). Additionally, the father's remaining contention does not warrant reversal.

Accordingly, the Family Court's award of primary physical custody to the mother was not an improvident exercise of its discretion.

RIVERA, J.P., BALKIN, DICKERSON and COHEN, JJ., concur.


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