| Bourne v Bristow |
| 2009 NY Slip Op 07215 [66 AD3d 621] |
| October 6, 2009 |
| Appellate Division, Second Department |
| Grayson Hugh Bourne, Appellant, v Pamela Bristow,Respondent. |
—[*1] Cohen Lans LLP, New York, N.Y. (Raimonde Schwarz of counsel) and Gravett & Gravett,Mount Kisco, N.Y. (Willem Gravett of counsel), for respondent (one brief filed).
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by his brief,from so much of a judgment of the Supreme Court, Westchester County (Tolbert, J.), enteredAugust 14, 2007, as, upon a decision of the same court dated December 18, 2006, made after anonjury trial, awarded sole custody of the parties' child to the defendant.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
The essential consideration in determining custody is the best interests of the child (seeEschbach v Eschbach, 56 NY2d 167, 171 [1982]; Matter of Carrasquillo v Cora, 60 AD3d 852 [2009]; Gurewich v Gurewich, 43 AD3d458 [2007]). The factors to be considered in making a custody determination include "theparental guidance provided by the custodial parent, each parent's ability to provide for the child'semotional and intellectual development, each parent's ability to provide for the child financially,the relative fitness of each parent, and the effect an award of custody to one parent might have onthe child's relationship with the other parent" (Craig v Williams-Craig, 61 AD3d 712, 712 [2009] [internalquotation marks omitted]; see Matter ofMcGovern v Lynch, 62 AD3d 712 [2009]; Matter of Carrasquillo v Cora, 60 AD3d 852 [2009]). The"existence or absence of any one factor cannot be determinative on appellate review since thecourt is to consider the totality of the circumstances" (Eschbach v Eschbach, 56 NY2d at174; see Pollack v Pollack, 56AD3d 637 [2008]; Matter of Bowev Robinson, 23 AD3d 555 [2005]; Kaplan v Kaplan, 21 AD3d 993 [2005]). Similarly, while "thevalue of forensic evaluations of the parents and children has long been recognized" (Matter of Volpe v Volpe, 61 AD3d691, 692 [2009], quoting Ekstra vEkstra, 49 AD3d 594, 595 [2008]; see Matter of Womack v Jackson, 30 AD3d 433 [2006]), the courtis not required to accept the recommendation of the court-appointed forensic psychologist(see Bruno v Bruno, 47 AD3d 606 [2008]; Matter of Kelly v Hickman, 44 AD3d 941 [2007]; Matter ofGriffin v Scott, 303 AD2d 504 [2003]), as such recommendations are merely additionalfactors to be considered since "they are not determinative and do not usurp the judgment of thetrial judge" (Matter of Kozlowski vMangialino, 36 AD3d 916, 917 [2007]).[*2]
Moreover, it is recognized that where, as here, acomplete evidentiary hearing has been held on the issue of custody, any determination dependsto a great extent upon the hearing court's assessment of the credibility of the witnesses and of thecharacter, temperament, and sincerity of the parties (see Matter of Rudolph v Armstead, 61 AD3d 979 [2009]; Matter of Gilmartin v Abbas, 60 AD3d1058 [2009]; Matter of Bonilla vAmaya, 58 AD3d 728 [2009]). Accordingly, these findings of the hearing court will beaccorded great weight, and its grant of custody will not be disturbed unless it lacks a sound andsubstantial basis in the record (seeMatter of Jara v Rivera, 60 AD3d 680 [2009]; Matter of Francis v Cox, 57 AD3d 776 [2008]; Matter of Rolon v Medina, 56 AD3d676 [2008]).
The record reveals that both parties love their infant daughter, and that either one would be agood custodial parent. Although the court-appointed evaluator recommended that custody of thechild be awarded to the father, when the abovementioned factors are applied in this case, theSupreme Court's determination to award sole custody of the child to the mother has a sound andsubstantial basis in the record. The evidence at the hearing established that the child, who hadbeen continuously in the mother's care, is happy and well-adjusted, exhibits no signs ofemotional problems, is closely bonded to both parents and to her half brothers, relates well withothers, is well socialized, and is excelling in school. Accordingly, the Supreme Court's award ofcustody to the mother was not an improvident exercise of discretion and will not be disturbed (see Gurewich v Gurewich, 43 AD3d458 [2007]). Fisher, J.P., Covello, Angiolillo and Roman, JJ., concur.