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In re Murphy

Supreme Court of New York, Second Department

April 5, 2017

In the Matter of Marcus Murphy, respondent,
v.
Elyssa Lewis, appellant. Docket No. V-304-11

          William Martin, White Plains, NY, for appellant.

          Eve Bunting-Smith, White Plains, NY, for respondent.

          Steven P. Kmetz, White Plains, NY, attorney for the child.

          REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, COLLEEN D. DUFFY, BETSY BARROS, JJ.

          DECISION & ORDER

         Appeals by the mother from (1) an order of fact-finding of the Family Court, Westchester County (Hal B. Greenwald, J.), entered October 1, 2015, and (2) an amended order of fact-finding of that court entered October 22, 2015. Both orders granted the father's petition for sole legal and physical custody of the subject child and awarded only supervised visitation to the mother.

         ORDERED that the appeal from the order of fact-finding entered October 1, 2015, is dismissed, without costs or disbursements, as that order was superseded by the amended order of fact-finding entered October 22, 2015; and it is further, ORDERED that the amended order of fact-finding entered October 22, 2015, is affirmed, without costs or disbursements.

         The father and the mother, who were never married, have one child in common. The father petitioned, and the mother cross-petitioned, for custody, and following a hearing, the Family Court awarded sole legal and physical custody to the father and supervised visitation to the mother. The mother appeals.

         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 Nunez v Lasso, 144 A.D.3d 689, 689; Matter of Klein v Theus, 143 A.D.3d 984, 985; Matter of Julie v Wills, 73 A.D.3d 777). "Factors to be considered in determining the child's best interests 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 effect an award of custody to one parent might have on the child's relationship with the other parent" (Matter of Elliott v Felder, 69 A.D.3d 623, 623; see Matter of Nunez v Lasso, 144 A.D.3d at 689). "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 findings, and such findings will not be disturbed unless they lack a sound and substantial basis in the record" (Matter of Gooler v Gooler, 107 A.D.3d 712, 712; see Matter of Goodman v Jones, 146 A.D.3d 884, 886). Here, the Family Court's determination that the child's best interests would be served by awarding the father sole legal and physical custody has a sound and substantial basis in the record, and will not be disturbed (see Matter of McPherson v McPherson, 139 A.D.3d 953, 954; Matter of Monasterska v Burns, 121 A.D.3d 903).

         Supervised visitation is appropriate only where it is established that unsupervised visitation would be detrimental to the child (see Liverance v Liverance, __ A.D.3d __ 2017 NY Slip Op 01544 [2d Dept 2017]; Matter of Mikell v Bermejo, 139 A.D.3d 954, 955; Irizarry v Irizarry, 115 A.D.3d 913, 914). The determination of whether visitation should be supervised is a matter left to the trial court's sound discretion, and its findings will not be disturbed on appeal unless they lack a sound and substantial basis in the record (see Matter of Gooler v Gooler, 107 A.D.3d at 713; Cervera v Bressler, 50 A.D.3d 837, 839). Here, the Family Court's determination that the mother's visitation should be supervised was supported by a sound and substantial basis in the record and, thus, will not be disturbed.

         The Family Court providently exercised its discretion in declining to conduct an in camera interview of the child (see Matter of Lincoln v Lincoln,24 N.Y.2d 270, 273-274; Matter of Martinez v Hyatt,86 A.D.3d 571, ...


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