| Matter of Otero v Nieves |
| 2010 NY Slip Op 07349 [77 AD3d 756] |
| October 12, 2010 |
| Appellate Division, Second Department |
| In the Matter of Christopher Otero, Appellant, v CynthiaNieves, Respondent. |
—[*1] Israel P. Inyama, Albany, N.Y., for respondent. Karen P. Simmons, Brooklyn, N.Y. (Heather L. Kalachman and Janet Neustaetter of counsel),attorney for the child.
In a child custody proceeding pursuant to Family Court Act article 6, the father appeals from somuch of an order of the Family Court, Kings County (Graham, J.), dated September 8, 2009, as, aftera hearing, denied his petition seeking custody of the parties' child and granted the mother's crosspetition for custody of the child and for permission to relocate to Pennsylvania.
Ordered that the order is affirmed insofar as appealed from, with costs.
An award of custody is based on a determination of the best interests of the child, which includesthose factors considered in assessing a petition for relocation (see Matter of Tropea v Tropea,87 NY2d 727, 739 [1996]; Matter ofTabernuro v Jones, 23 AD3d 667 [2005]; Matter of Brackman v Debrest, 276AD2d 483 [2000]; Matter of Spencer v Small, 263 AD2d 783, 785 [1999]). Becausecustody determinations depend to a great extent upon an assessment of the character and credibility ofthe parties and witnesses, deference is accorded to the trial court's findings, and such findings will notbe disturbed unless they lack a sound and substantial basis in the record (see Matter of Garcia v Becerra, 68 AD3d864 [2009]; Matter of Bonilla vAmaya, 58 AD3d 728 [2009]).
Based on the evidence, including the testimony of the parties and witnesses, the denial of thefather's petition for custody and the granting of the mother's cross petition for custody and forpermission to relocate with the child to Pennsylvania were based on sound and substantial evidence inthe record and should not be disturbed on appeal (see Eschbach v Eschbach, 56 NY2d 167,171 [1982]; Friederwitzer v Friederwitzer, 55 NY2d 89, 93 [1982]; Matter of Tyska v Jensen, 74 AD3d831 [2010]; Matter of Tabernuro vJones, 23 AD3d 667 [2005]; Matter of Brackman v Debrest, 276 AD2d 483[2000]; Matter of Spencer v Small, 263 AD2d 783, 785 [1999]). Prudenti, P.J., Angiolillo,Belen and Sgroi, JJ., concur.