| Matter of Savage v Cota |
| 2009 NY Slip Op 07071 [66 AD3d 1491] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Martin N. Savage, Respondent, v Julianne Cota,Appellant. William L. Koslosky, Law Guardian, Appellant. |
—[*1] William L. Koslosky, Law Guardian, Utica, appellant pro se. Cohen & Cohen LLP, Utica (Richard A. Cohen of counsel), forpetitioner-respondent.
Appeals from an order of the Family Court, Oneida County (David A. Murad, A.J.), enteredDecember 18, 2007 in a proceeding pursuant to Family Court Act article 6. The order, insofar asappealed from, awarded petitioner primary physical custody of the parties' child.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent mother and the Law Guardian appeal from that part of an orderawarding petitioner father primary physical custody of the parties' child, thus modifying thedivorce judgment with respect to custody as well as a prior order of custody. We affirm. FamilyCourt's determination that the best interests of the child thereby would be served is entitled todeference (see generally Eschbach v Eschbach, 56 NY2d 167, 173-174 [1982]) and,based on our review of the hearing transcript, we conclude that the court's determination was"the product of 'careful weighing of [the] appropriate factors' " (Matter of McLeod v McLeod, 59AD3d 1011, 1011 [2009]), and has a sound and substantial basis in the record (see Matter of Krug v Krug, 55 AD3d1373 [2008]; Matter of Amy L.W.v Brendan K.H., 37 AD3d 1060 [2007]). We reject the mother's contention that thecourt relied too heavily on the child's race in determining the issue of custody (see generallyMatter of Davis v Davis, 240 AD2d 928, 928-929 [1997]; Lee v Halayko, 187 AD2d1001 [1992]). Finally, contrary to the further contention of the mother and the Law Guardian, weconclude that the gaps in the hearing transcript resulting from inaudible portions of the audiotape recording are not so significant as to preclude meaningful review of the order on appeal(cf. Matter of Jordal v Jordal, 193 AD2d 1102 [1993]). Present—Smith, J.P.,Fahey, Carni, Pine and Gorski, JJ.