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In re Biancoviso

Supreme Court of New York, Second Department

May 17, 2017

In the Matter of Christine Biancoviso, appellant,
v.
Andres Barona, respondent. (Proceeding No. 1) In the Matter of Andres Barona, respondent,
v.
Christine Biancoviso, appellant. (Proceeding No. 2) Docket Nos. V-11533-15, V-11534-15, V-16884-15, V-16885-15

          Sherri L. Kaplan, Commack, NY, for appellant.

          Glenn Gucciardo, Northport, NY, for respondent.

          Jeanne R. Burton, Central Islip, NY, attorney for the children.

          WILLIAM F. MASTRO, J.P. MARK C. DILLON SHERI S. ROMAN VALERIE BRATHWAITE NELSON, JJ.

          DECISION & ORDER

         Appeal by the mother from an order of the Family Court, Suffolk County (Roseann Orlando, Ct. Atty. Ref.), dated April 5, 2016. The order, after a hearing, granted the father's petition for sole custody of the subject children and denied the mother's petition for sole custody of the subject children and for permission to relocate with them to North Carolina.

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

         The mother and the father, who never married each other, have two children together. In July 2015, the father commenced a proceeding seeking sole custody of the children. Thereafter, in October 2015, the mother filed her own petition for sole custody of the children and for permission to relocate with them to North Carolina. After a hearing, the Family Court denied the mother's petition and granted the father's petition. The mother appeals.

         The mother's contention that the Family Court was biased against her in the conduct of the hearing is unpreserved for appellate review. A party claiming court bias must preserve an objection and move for the court to recuse itself (see Matter of Bowe v Bowe, 124 A.D.3d 645, 646; Matter of Kimberly Z. [Jason Z.], 88 A.D.3d 1181). In any event, when a claim of bias is raised, the "inquiry on appeal is limited to whether the judge's bias, if any, unjustly affected the result to the detriment of the complaining party" (Matter of Davis v Pignataro, 97 A.D.3d 677, 678 [internal quotation marks omitted]; see Matter of Bowe v Bowe, 124 A.D.3d at 646). Here, the record establishes that the court treated the parties fairly, made appropriate evidentiary rulings, and did not have a predetermined outcome of the case in mind during the proceedings (see Matter of Bowe v Bowe, 124 A.D.3d at 646; Matter of Davis v Pignataro, 97 A.D.3d at 678). Accordingly, we reject the mother's claim of bias on the part of the court.

         "When determining custody cases, the primary concern is the best interests of the child" (McDonald v McDonald, 122 A.D.3d 911, 911 [internal quotation marks omitted]; see Eschbach v Eschbach, 56 N.Y.2d 167, 171; Matter of Islam v Lee, 115 A.D.3d 952, 953). "The factors to be considered in determining the custody arrangement that is in 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" (McDonald v McDonald, 122 A.D.3d at 911 [internal quotation marks omitted]; see Eschbach v Eschbach, 56 N.Y.2d at 171-173; Matter of Islam v Lee, 115 A.D.3d at 953). If domestic violence is alleged, and such allegations are proven by a preponderance of the evidence, the court must consider the effect of such violence upon the child (see Domestic Relations Law § 240[1][a]; Bressler v Bressler, 122 A.D.3d 659, 660; Matter of Felty v Felty, 108 A.D.3d 705, 707). "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'" (Matter of McLennan v Gordon, 122 A.D.3d 742, 742, quoting Eschbach v Eschbach, 56 N.Y.2d at 174).

         With respect to relocation, "[a] parent seeking leave to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child's best interests" (Matter of Caruso v Cruz, 114 A.D.3d 769, 771; see Matter of Ventura v Huggins, 141 A.D.3d 600, 600; Matter of Francis-Miller v Miller, 111 A.D.3d 632, 635; Matter of Steadman v Roumer, 81 A.D.3d 653, 654). In determining whether a proposed move is in a child's best interests, courts are "free to consider and give appropriate weight to all of the factors that may be relevant to the determination" (Matter of Tropea v Tropea, 87 N.Y.2d 727, 740; see Matter of Hall v Hall, 118 A.D.3d 879, 880). These factors include, but are not limited to, "each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements" (Matter of Tropea v Tropea, 87 N.Y.2d at 740-741; see Matter of Ventura v Huggins, 141 A.D.3d at 600; Matter of Hall v Hall, 118 A.D.3d at 880-881).

         Inasmuch as a best interests determination "requires an evaluation of the testimony, character and sincerity of all the parties involved" (Eschbach v Eschbach, 56 N.Y.2d at 173; see Matter of Pietrafesa v Pietrafesa, 108 A.D.3d 557, 558), the Family Court's credibility determinations are entitled to deference, and its decision will be upheld if supported by a sound and substantial basis in the record (see Eschbach v Eschbach, 56 N.Y.2d at 173; Matter of Jurado v Jurado, 119 A.D.3d 796, 796; Matter of Pietrafesa v Pietrafesa, 108 A.D.3d at 558; Matter of Karen H. v Maurice G., 101 A.D.3d 1005, 1006). Here, the Family Court's determination as to custody and relocation was supported by a sound and substantial basis in the record. Accordingly, we discern no basis in the record to disturb its determination.

         The mother's remaining contentions are without merit.

          MASTRO, J.P., DILLON, ROMAN and BRATHWAITE ...


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