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In re Jackson

Supreme Court of New York, Second Department

January 10, 2018

In the Matter of Anaisa Jackson, respondent,
v.
Walter Jackson, appellant.

          Cheryl 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

         Appeal 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 parties' child.

         ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

         The 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.

         "There 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).

         In 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).

         The 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).

         The father's remaining contentions are either beyond the scope of review ...


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