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 Tarelle J. [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 ...