| Matter of Khaykin v Kanayeva |
| 2008 NY Slip Op 00500 [47 AD3d 817] |
| January 22, 2008 |
| Appellate Division, Second Department |
| In the Matter of Samuel Khaykin, Respondent, v NataliyaKanayeva, Appellant. In the Matter of Nataliya Kanayeva, Appellant, v Samuel Khaykin,Respondent. |
—[*1] Samuel Khaykin, Brooklyn, N.Y., respondent pro se. Carol Sherman, Brooklyn, N.Y. (Janet Neustaetter and Barbara H. Dildine of counsel), LawGuardian.
In a child custody proceeding pursuant to Family Court Act article 6, and a related familyoffense proceeding pursuant to Family Court Act article 8, the mother appeals from (1) an orderof the Family Court, Kings County (Grosvenor, J.), dated November 22, 2006, which granted thefather's petition for custody of the subject child, and (2) an order of the same court datedNovember 22, 2006, as amended by an order of the same court dated December 11, 2006, whichdismissed her family offense petition.
Ordered that the orders are affirmed, without costs or disbursements.
The mother's contentions regarding the award of custody are without merit. A change ofcircumstances analysis is inapplicable in making an initial custody determination (see Matter of Anson v Anson, 20AD3d 603 [2005]). Temporary custody orders issued without the benefit of a full plenaryhearing are only one factor relevant to the ultimate determination (see Matter of Bessette v [*2]Pelton, 29 AD3d 1085, 1087 [2006]; Matter of Ansonv Anson, 20 AD3d at 603-604; Matter of Bruce BB. v Debra CC., 307 AD2d 408,409 [2003]). Here, the mother was given custody pursuant to a temporary custody order before ahearing was conducted. Therefore, a change of circumstances analysis is inapplicable.
A custody determination depends to a great extent upon the Family Court's assessment of thecredibility of the witnesses and upon the assessments of the character, temperament, and sincerityof the parents. The Family Court's determination should not be set aside unless it lacks a soundand substantial basis in the record (seeMatter of Struble v Struble, 44 AD3d 1060 [2007]). Here, the Family Court'sdetermination that it would be in the child's best interests to award custody to the father wassupported by the record.
The mother's contention that the court failed to consider the allegations in her family offensepetition is without merit. Where allegations of domestic violence are proven by a preponderanceof the evidence, "the court must consider the effect of such domestic violence upon the bestinterests of the child" (Domestic Relations Law § 240 [1] [a]; see Matter of Rodriguez v Guerra, 28AD3d 775, 776 [2006]; Matter ofMoreno v Cruz, 24 AD3d 780, 781 [2005]). Here, however, the court determined thatthe mother's allegations were not supported by a preponderance of the evidence. The fatherdenied the mother's allegations, and the court resolved the conflicting testimony in favor of thefather. Based on the record, there is no basis to disturb the court's credibility determination.Prudenti, P.J., Crane, Fisher and McCarthy, JJ., concur.