| Matter of Berkham v Vessia |
| 2009 NY Slip Op 05546 [63 AD3d 1155] |
| June 30, 2009 |
| Appellate Division, Second Department |
| In the Matter of Craig Berkham, Sr., Respondent, v AdeleVessia, Appellant. |
—[*1] Law Offices of Robert Dapelo, Esq., PC, Patchogue, N.Y. (Christopher L. Miller ofcounsel), for respondent. Robert C. Mitchell, Riverhead, N.Y. (Diane B. Groom of counsel), attorney for thechild.
In two related child custody proceedings pursuant to Family Court Act article 6, the motherappeals from an order of the Family Court, Suffolk County (Tarantino, Jr., J.), dated February29, 2008, which, after a hearing, granted the father's petition for sole custody of the parties' childand to direct that her visitation with the subject child be supervised, and denied her cross petitionfor sole custody of the subject child.
Ordered that the order is affirmed, without costs or disbursements.
Contrary to the mother's contentions, the Family Court considered the appropriate factors indetermining the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167[1982]). Since a custody determination necessarily depends to a great extent upon an assessmentof the character and credibility of the parties and witnesses, deference is accorded the court'sfindings (see Cuccurullo v Cuccurullo, 21 AD3d 983 [2005]). Therefore, its findingsshould not be set aside unless they lack a sound and substantial basis in the record (seeMatter of Nikolic v Ingrassia, 47 AD3d 819, 820 [2008]; Neuman v Neuman, 19AD3d 383, 384 [2005]). The evidence presented at the hearing supports the Family Court'sdetermination that the mother refused to obtain appropriate treatment for her serious mentalhealth problem which impaired her ability to function adequately as the custodial parent (seeMatter of Halpern v Halpern, 20 AD3d 420, 421 [2005]; Landau v Landau, 214AD2d 541, 541-542 [1995]). Further, the evidence established that the father was recoveringfrom his substance abuse problems and that the subject child was doing well in his care.Consequently, the Family Court's determination to award sole custody to the father, which wasconsistent with the opinion of the court-appointed forensic expert and the position of the attorneyfor the child, has a sound and substantial basis in the record and will not be disturbed.
Under these circumstances, the Family Court providently exercised its discretion in directingthat the mother's visitation be supervised (see Matter of Westfall v Westfall, 28 AD3d1229, 1230 [2006]; Matter of Anderson v Sparks, 18 AD3d 656, 657 [2005]). Mastro,J.P., Eng, Belen and Hall, JJ., concur.