| Matter of Francois v Hall |
| 2010 NY Slip Op 04386 [73 AD3d 1055] |
| May 18, 2010 |
| Appellate Division, Second Department |
| In the Matter of Eudson Tyson Francois,Appellant, v Yonette Hall, Respondent. |
—[*1]
In a custody and visitation proceeding pursuant Family Court Act article 6, the father appealsfrom an order of the Family Court, Queens County (Ebrahimoff, Ct. Atty. Ref.), dated June 11,2009, which, after hearing, denied his petition, in effect, for joint legal and physical custody ofthe subject child, and awarded sole custody to the mother.
Ordered that the order is affirmed, without costs or disbursements.
There is "no prima facie right to the custody of the child in either parent" (DomesticRelations Law § 70 [a]; § 240 [1] [a]; see Friederwitzer v Friederwitzer, 55NY2d 89 [1982]; Matter of Riccio vRiccio, 21 AD3d 1107 [2005]). The essential consideration in making an award ofcustody is the best interests of the child (see Friederwitzer v Friederwitzer, 55 NY2d 89[1982]; Matter of McIver-Heyward vHeyward, 25 AD3d 556 [2006]). "Factors to be considered include 'the quality of thehome environment and the parental guidance the custodial parent provides for the child, theability of each parent to provide for the child's emotional and intellectual development, thefinancial status and ability of each parent to provide for the child, the relative fitness of therespective parents, and the effect an award of custody to one parent might have on the child'srelationship with the other parent' " (Kaplan v Kaplan, 21 AD3d 993, 994-995 [2005], quotingMiller v Pipia, 297 AD2d 362, 364 [2002]).
The Family Court properly denied the father's petition, in effect, for joint legal and physicalcustody, given the parties' inability to communicate with each other about the subject child (see Matter of Grant v Grant, 47 AD3d1027 [2008]). The Family Court's award of sole custody to the mother and substantialvisitation to the father has a sound and substantial basis in the record (see Schneider v Schneider, 40 AD3d956 [2007]; Matter ofMcIver-Heyward v Heyward, 25 AD3d 556 [2006]).
Finally, the father was ably represented by counsel throughout the fact-finding hearing, atthe conclusion of which the Family Court read its decision into the record (see Family CtAct § 262). The father's contention that he was deprived of his right to counsel at asubsequent conference because an [*2]emergency prevented hisattorney from attending, is without merit. That last conference did not constitute a custodyhearing; rather, the Family Court simply placed the specific visitation schedule on the record(see Family Ct Act § 262 [a] [v] [right to counsel attaches in a proceedinginvolving custody]; cf. Matter ofWilliams v Bentley, 26 AD3d 441 [2006] [requiring mother to try custody matterwithout benefit of counsel violated her right to be represented by counsel]). Mastro, J.P., Miller,Leventhal and Belen, JJ., concur.