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In re Mitchell

Supreme Court of New York, Second Department

January 22, 2014

In the Matter of Sabrina R. Mitchell, appellant,
v.
Rodney L. Mitchell, respondent. (Proceeding No. 1) In the Matter of Rodney Mitchell, respondent,
v.
Sabrina Mitchell, appellant. (Proceeding No. 2) Docket Nos. V-10873-09, V-10874-09, V-10875-09, V-11931-09, V-11932-09, V-11933-09

Alexander Golant, Bethpage, N.Y., for appellant.

Rodney Mitchell, named herein in Proceeding No. 1 as Rodney L. Mitchell, Roosevelt, N.Y., respondent pro se.

Ngozi Rosaline Asonye, Freeport, N.Y., attorney for the children.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, SANDRA L. SGROI, JJ.

DECISION & ORDER

In related custody proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Nassau County (Pizzolo, Ct. Atty. Ref.), dated June 25, 2012, which, after a hearing, denied her petition for sole custody of the parties' children, and granted the father's petition for sole custody.

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

"[T]he paramount concern in adjudicating custody disputes is the best interests of the child (see Domestic Relations Law § 70; Eschbach v Eschbach, 56 N.Y.2d 167, 171; Friederwitzer v Friederwitzer, 55 N.Y.2d 89, 93-95; Matter of Taylor v Lumba, 309 A.D.2d 941; Mauter v Mauter, 309 A.D.2d 737). The determination of the trial court is entitled to great deference and should not be disturbed unless it lacks a sound and substantial basis in the record (see Kaplan v Kaplan, 21 A.D.3d 993, 994; Miller v Pipia, 297 A.D.2d 362, 364)" (Matter of Rodriguez v Guerra, 28 A.D.3d 775, 776).

"Factors to be considered in determining the child's best interest include: the quality of the home environment and the parental guidance the custodial parent provides for the child... the ability of each parent to provide for the child's emotional and intellectual development... the financial status and ability of each parent to provide for the child... the relative fitness of the respective parents, and the length of time the present custody arrangement has been in effect' (Matter of Lobo v Muttee, 196 A.D.2d 585, 587, quoting Matter of Krebsbach v Gallagher, 181 A.D.2d 363, 364-365; see also Eschbach v Eschbach [56 N.Y.2d 167]). Moreover, a court should be mindful that the existence or absence of any one factor cannot be determinative on appellate review since the court is to consider the totality of the circumstances'(Eschbach v Eschbach [56 N.Y.2d] at 174)" (Matter of Walton v Walton, 306 A.D.2d 491, 492).

Here, there is a sound and substantial basis for the Family Court's determination that it is in the best interest of the parties' children for the father to have sole custody of them, based on, inter alia, the unrefuted evidence that his living situation and employment are considerably more stable than that of the mother. While the attorney for the children took the position that the mother should be granted sole custody, this position was but one factor for the court to consider, and cannot be permitted to usurp the judgment of the trial judge (see Matter of Kozlowski v Mangialino, 36 A.D.3d 916, 917).

DILLON, J.P., DICKERSON, AUSTIN and SGROI, JJ., concur.


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