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In re Land-Wheatley

Supreme Court of New York, Second Department

July 17, 2013

In the Matter of Anna L. Land-Wheatley, respondent,
v.
Ronald Land-Wheatley, appellant. Docket Nos. V-10551/10, V-10552/10

Judith Ellen Stone, Merrick, N.Y., for appellant.

Elaine Miller, Great Neck, N.Y., for respondent.

Marjorie G. Adler, Garden City, N.Y., attorney for the children.

DANIEL D. ANGIOLILLO, J.P., CHERYL E. CHAMBERS, SANDRA L. SGROI, JEFFREY A. COHEN, JJ.

DECISION & ORDER ON MOTION

In related child custody proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Nassau County (LoPresti, Ct. Atty. Ref.), dated January 19, 2012, as amended by an order of the same court dated June 4, 2012, which, after a hearing, granted the mother's petitions for sole legal and physical custody of the subject children and established a visitation schedule for the father.

ORDERED that the order, as amended, is affirmed, without costs or disbursements.

The court's paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child (see Eschbach v Eschbach, 56 N.Y.2d 167, 171; Matter of Otero v Nieves, 77 A.D.3d 756). Moreover, inasmuch as custody determinations depend in large part on an assessment of the character and credibility of the parties and witnesses, the Family Court's findings will not be disturbed unless they lack a sound and substantial basis in the record (see Matter of Garcia v Becerra, 68 A.D.3d 864; Matter of Bonilla v Amaya, 58 A.D.3d 728). Here, the Family Court's determination that the subject children's best interests would be served by awarding sole legal and physical custody to the mother has a sound and substantial basis in the record (see Matter of Quinones v Gonzalez, 79 A.D.3d 893; Matter of Bonilla v Amaya, 58 A.D.3d at 728).

Contrary to the father's arguments, as the parties' former custody arrangement was an informal one, and as there was no prior custody order in effect at the time this proceeding was commenced, the Family Court was not required to engage in a change-of-circumstances analysis (see Matter of Louis M. v Administration for Children's Servs., 69 A.D.3d 633, 634; Matter of Smith v Smith, 61 A.D.3d 1275; Matter of Anson v Anson, 20 A.D.3d 603, 603-604).

There is no merit to the father's remaining contentions that the Family Court should have, sua sponte, conducted an in camera interview with the children, or that the order appealed from demonstrated that the Family Court was biased against him.

ANGIOLILLO, J.P., CHAMBERS, SGROI and COHEN, JJ., concur.

Motion by the attorney for the children, inter alia, to dismiss an appeal from an order of the Family Court, Nassau County, dated January 19, 2012, as amended on June 4, 2012, on the ground that it has been rendered academic. By decision and order on motion of this Court dated March 13, 2013, that branch of the motion which was to dismiss the appeal was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeal, it is

ORDERED that the branch of the motion which was to dismiss the appeal is denied.

ANGIOLILLO, J.P., CHAMBERS, SGROI and COHEN, JJ., concur.


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