| Matter of Samuel S. v Dayawathie R. |
| 2009 NY Slip Op 04431 [63 AD3d 746] |
| June 2, 2009 |
| Appellate Division, Second Department |
| In the Matter of Samuel S., Appellant, v Dayawathie R.,Respondent. |
—[*1] Lansner & Kubitschek, New York, N.Y. (Jill M. Zuccardy of counsel), for respondent. Gail Jacobs, Great Neck, N.Y., attorney for the child.
In related child custody proceedings pursuant to Family Court Act article 6, the fatherappeals, as limited by his brief, from so much of an order of the Family Court, Queens County(Negron, Ct. Atty. Ref.), dated July 3, 2008, as, after a hearing, denied his petition for custody ofthe parties' daughter, awarded sole custody of the parties' daughter to the mother, and denied himvisitation.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
"The court's paramount concern in any custody dispute is whether, under the totality of thecircumstances, a transfer of custody is in the best interests of the child" (Musachio v Musachio, 53 AD3d600, 601 [2008]; see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Matter of Fallarino v Ayala, 41 AD3d714, 714-715 [2007]). The express wishes of the child are entitled to great weight where thechild's age and maturity make his or her input particularly meaningful (see Matter of O'Connor v Dyer, 18AD3d 757 [2005]; Matter of Kocowicz v Kocowicz, 306 AD2d 285, 285-286[2003]; Bergson v Bergson, 68 AD2d 931, 932 [1979]). Inasmuch as "custodydeterminations depend to a great extent upon an assessment of the character and credibility ofthe parties and witnesses, the findings of the Family Court will not be disturbed unless they[*2]lack a sound and substantial basis in the record" (Matter of Conforti v Conforti, 46AD3d 877, 877-878 [2007]; see Eschbach v Eschbach, 56 NY2d at 173; Matterof Fallarino v Ayala, 41 AD3d at 715).
Here, the Family Court's determination that there should be no change of custody has asound and substantial basis in the record and will not be disturbed. The evidence demonstratedthat it was in the best interests of the 17-year-old child to remain in the custody of the mother,who has continuously cared for the child since birth and is a fit parent (see Matter ofFallarino v Ayala, 41 AD3d at 715). The court properly took into consideration the child'swishes, given her age and maturity (see Matter of O'Connor v Dyer, 18 AD3d at757-758). Moreover, the testimony and recommendations of the forensic examiner that a changein custody would be detrimental to the well-being of the child were uncontradicted by the recordand properly credited by the Family Court (see Matter of Guerra v Balistreri, 49 AD3d 646, 647 [2008];Matter of Muller v Muller, 221 AD2d 635, 636 [1995]).
Similarly, we find no basis to disturb the Family Court's determination that denial ofvisitation was in the best interests of the child. The evidence established that the child's fear ofthe father was valid, as it was based upon the father's abusive and criminal behavior. The fatherhad committed family offenses, emotionally and sexually abused the mother, abducted the child'solder siblings, and intentionally exposed the child to graphic, sexually-explicit materials. Theorder precluding all contact was consistent with the child's wishes, the testimony and report ofthe court-appointed forensic psychologist, and the father's denial of responsibility for theemotional and psychological injury his behavior had caused. Accordingly, the Family Court'sdetermination was properly "based on substantial evidence that visitation would be detrimentalto the welfare of the child" (Matter ofGrossman v Grossman, 5 AD3d 486, 487 [2004] [internal quotation marks omitted]; see Matter of Thomas v Thomas, 35AD3d 868, 869 [2006]; Matter ofMorales v Bruno, 29 AD3d 1001 [2006]). Fisher, J.P., Covello, Angiolillo andLeventhal, JJ., concur.