Salvatore C. Adamo, New York, NY, for appellant.
Castrovinci & Mady, Smithtown, NY (Matthew K. Mady of
counsel), for respondent.
D. Weinberg-Daly, Riverhead, NY, attorney for the child.
C. BALKIN, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE,
COLLEEN D. DUFFY, JJ.
DECISION & ORDER
by the father from an order of the Family Court, Suffolk
County (Timothy P. Mazzei, J.), dated December 18, 2015. The
order, insofar as appealed from, after a hearing, in effect,
granted the mother's petition, in effect, for sole legal
and physical custody of the subject child and denied the
father's cross petition for sole custody of the child.
that the order is affirmed insofar as appealed from, without
costs or disbursements.
in a custody dispute has the right to be represented by
counsel (see Matter of Moiseeva v Sichkin, 129
A.D.3d 974, 975; Matter of Belmonte v Batista, 102
A.D.3d 682, 682), but may waive that right, provided that he
or she does so knowingly, voluntarily, and intelligently
(see Matter of Stephen Daniel A. [Sandra M.], 87
A.D.3d 735, 736). "In order to determine whether a party
is validly waiving the statutory right to counsel, the Family
Court must conduct a searching inquiry' to ensure that
the waiver is knowing, voluntary, and intelligent"
(Matter of Osorio v Osorio, 142 A.D.3d 1177, 1178,
quoting Matter of Jung [State Commn. on Jud.
Conduct], 11 N.Y.3d 365, 373; see Matter of Rosof v
Mallory, 88 A.D.3d 802, 802; Matter of Spencer v
Spencer, 77 A.D.3d 761, 761; Matter of McGregor v
Bacchus, 54 A.D.3d 678, 679). "While there is no
rigid formula to be followed in such an inquiry, and the
approach is flexible, the record must demonstrate that the
party was aware of the dangers and disadvantages of
proceeding without counsel" (Matter of McGregor v
Bacchus, 54 A.D.3d at 679 [internal quotation marks
omitted]; see Matter of Pugh v Pugh, 125 A.D.3d 663,
the Family Court conducted a sufficiently searching inquiry
to ensure that the father's clear and unequivocal waiver
of his right to counsel was knowingly, voluntarily, and
intelligently made (see Matter of Graham v Rawley,
140 A.D.3d 765, 767). The court advised the father of the
dangers and disadvantages of giving up the fundamental right
to counsel, and the father acknowledged his understanding of
those perils and repeated his desire to proceed pro se
(see Matter of Ryan v Alexander, 133 A.D.3d 605,
606). Accordingly, the court did not err in allowing the
father to represent himself.
there is no merit to the father's contention that the
Family Court improvidently exercised its discretion in
denying his motion for recusal. Where, as here, no legal
basis for disqualification under Judiciary Law § 14 is
alleged, a court is the sole arbiter of the need for recusal,
and its decision is a matter of discretion and personal
conscience (see Matter of Rodriguez v Liegey, 132
A.D.3d 880, 880; Matter of Grucci v Villanti, 108
A.D.3d 626, 627). The father failed to set forth any
demonstrable proof of the court's bias or prejudice to
warrant recusal (see Matter of O'Donnell v
Goldenberg, 68 A.D.3d 1000, 1000; Impastato v
Impastato, 62 A.D.3d 752, 753).
there is no basis to disturb the Family Court's order
awarding sole legal and physical custody to the mother. 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 Klein v
Theus, 143 A.D.3d 984, 985; Matter of Gooler v
Gooler, 107 A.D.3d 712, 712; Matter of Julie v
Wills, 73 A.D.3d 777, 777). Inasmuch as a court's
custody determination is dependent in large part upon its
assessment of the witnesses' credibility and upon the
character, temperament, and sincerity of the parents, the
court's exercise of its discretion will not be disturbed
if supported by a sound and substantial basis in the record
(see Matter of Supangkat v Torres, 101 A.D.3d 889,
890; Matter of Reyes v Polanco, 83 A.D.3d 849, 850).
Here, the court's determination that the child'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 and will not be disturbed (see Matter of
Murphy v Lewis, 149 A.D.3d 748; Matter of Goodman v
Jones, 146 A.D.3d 884, 886; Matter of McPherson v
McPherson, 139 A.D.3d 953, 953).
father's remaining contention is without merit.
BALKIN, J.P., CHAMBERS, MALTESE ...