Submitted - December 7, 2017
Charles-Duval, Brooklyn, NY, for appellant. Jennifer Arditi,
Maspeth, NY, for respondent.
Seymour W. James, Jr., New York, NY (Tamara A. Steckler and
Claire V. Merkine of counsel), attorney for the child.
REINALDO E. RIVERA, J.P. LEONARD B. AUSTIN FRANCESCA E.
CONNOLLY ANGELA G. IANNACCI, JJ.
DECISION & ORDER
from an order of the Family Court, Kings County (Elizabeth
Barnett, J.), dated July 7, 2016. The order, insofar as
appealed from, after a hearing, granted the mother's
petition for sole legal and physical custody of the
that the order is affirmed insofar as appealed from, without
costs or disbursements.
parties, who never married each other, are the parents of a
son born in 2006. The parties lived together when the son was
born, and separated approximately 10 months later.
Thereafter, the son lived with the father for most of his
life until the Administration for Children's Services
(hereinafter the ACS) filed a neglect petition against the
father in June 2014, alleging that he neglected the son by
inflicting excessive corporal punishment, and the son was
temporarily released to the mother's care. Shortly
thereafter, the mother filed a petition seeking custody of
the son. The custody petition was held in abeyance until
resolution of the neglect petition. In a fact-finding order
dated December 8, 2014, the Family Court found that the
father had neglected the son, as alleged by the ACS, and this
Court affirmed (see Matter of TarelleJ. [Walter J.],
152 A.D.3d 593, 594). Subsequently, after a hearing, in an
order dated July 7, 2016, the Family Court, inter alia,
awarded sole legal and physical custody to the mother. The
father appeals from that portion of the order.
is no prima facie right to the custody of the child in either
parent" (Matter of Wallace v. Roberts, 105
A.D.3d 1053, 1053 [internal quotation marks omitted]; see
Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 93). In
custody matters, the paramount concern is the best interests
of the child (see Eschbach v. Eschbach, 56 N.Y.2d
167, 171; Matter of Stokes v. Stokes, 154 A.D.3d
952; Matter of Pena v. Cordero, 152 A.D.3d 697,
697). In determining what custody arrangement is in the
child's best interests, courts consider several factors,
including "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 Stokes v. Stokes, 154 A.D.3d at 952;
see Salvatore v. Salvatore, 68 A.D.3d 966, 966;
Miller v. Pipia, 297 A.D.2d 362, 364). The existence
or absence of any one factor is not determinative; rather,
the court is to consider the totality of the circumstances
(see Eschbach v. Eschbach, 56 N.Y.2d at 171, 174;
Matter of Pena v. Cordero, 152 A.D.3d at 697-698;
Miller v. Pipia, 297 A.D.2d at 364).
custody matters, this Court's authority is as broad as
that of the hearing court (see Matter of Louise E.S. v.
W. Stephen S., 64 N.Y.2d 946, 947; Matter of Larkin
v. White, 64 A.D.3d 707, 708). Nevertheless,
"[s]ince custody determinations turn in large part on
assessments of the credibility, character, temperament and
sincerity of the parties, the Family Court's
determination should not be disturbed unless it lacks a sound
and substantial basis in the record" (Matter of
Wallace v. Roberts, 105 A.D.3d at 1053 [internal
quotation marks omitted]; see Matter of Tori v.
Tori, 103 A.D.3d 654, 655). Here, contrary to the
father's contention, the Family Court's determination
that the child's best interests would be served by an
award of sole legal and physical custody to the mother has a
sound and substantial basis in the record based upon the
totality of the evidence, and should not be disturbed on
appeal (see Eschbach v Eschbach, 56 N.Y.2d at 167;
Matter of Pena v. Cordero, 152 A.D.3d at 698;
Matter of Wallace v. Roberts, 105 A.D.3d at 1053;
Matter of Riccio v. Riccio, 21 A.D.3d 1107, 1108).
father's contention that his substantive due process was
violated by the Family Court's custody determination is
without merit (see Matter of Marie B., 62 N.Y.2d
352, 358; Matter of Bennett v. Jeffreys, 40 N.Y.2d
543, 546; Matter of Spence-Chapin Adoption Serv. v.
Polk, 29 N.Y.2d 196, 204).
father's remaining contentions are either beyond the
scope of review ...