| Ekstra v Ekstra |
| 2010 NY Slip Op 08696 [78 AD3d 990] |
| November 23, 2010 |
| Appellate Division, Second Department |
| Alexander Ekstra, Appellant, v Melissa Ekstra,Respondent. |
—[*1] Collier, Halpern, Newberg, Nolletti & Bock, LLP, White Plains, N.Y. (Jennifer Jill O'Hara ofcounsel), for respondent.
In an action for a divorce and ancillary relief, the father appeals, by permission, from anorder of the Supreme Court, Westchester County (Tolbert, J.), entered April 13, 2009, which,after a hearing, awarded sole custody of the subject children to the mother, and only awarded himcertain visitation.
Ordered that the order is affirmed, with costs.
The primary concern in any custody dispute is the best interests of the child (seeDomestic Relations Law § 70 [a]; Eschbach v Eschbach, 56 NY2d 167, 171[1982]; McVeigh v Curry, 74 AD3d915 [2010]). Factors a court should consider in determining the best interests of the childinclude "the quality of the home environment and the parental guidance the custodial parentprovides for the child, the ability of each parent to provide for the child's emotional andintellectual development, the financial status and ability of each parent to provide for the child,the relative fitness of the respective parents, and the effect an award of custody to one parentmight have on the child's relationship with the other parent" (Salvatore v Salvatore, 68 AD3d 966, 966 [2009] [citation andinternal quotation marks omitted]; seeBourne v Bristow, 66 AD3d 621 [2009]). Other factors a court should consider includethe original placement of the child and the length of that placement (see Pierre-Paul v Boursiquot, 74 AD3d935, 936 [2010]).
"The 'existence or absence of any one factor cannot be determinative on appellate reviewsince the court is to consider the totality of the circumstances' " (Bourne v Bristow, 66AD3d at 621, quoting Eschbach v Eschbach, 56 NY2d at 174). "Moreover, inasmuch ascustody determinations depend in large part on an assessment of the character and credibility ofthe parties and witnesses, the hearing court's findings will not be disturbed unless they lack asound and substantial basis in the record" (Pierre-Paul v Boursiquot, 74 AD3d at 936;see Eschbach v Eschbach, 56 NY2d at 173; Bourne v Bristow, 66 AD3d at 622;Matter of Berkham v Vessia, 63AD3d 1155 [2009]). Further, "[i]n custody disputes, the value of forensic evaluations of theparents and children has long been recognized and the opinions of forensic experts should not bereadily set aside unless contradicted by the record" (Matter of Volpe v Volpe, 61 AD3d 691, 692 [2009] [citations and[*2]internal quotation marks omitted]).
Here, the Supreme Court's determination to award sole custody of the subject children to themother has a sound and substantial basis in the record. Thus, the determination will not bedisturbed.
The father contends that the Supreme Court erred in considering portions of the forensicreport and the forensic expert's testimony regarding recordings allegedly made by the mother ofthe father's conversations with the children. We need not address this contention, since theSupreme Court possessed sufficient information to reach a determination as to the best interestsof the children without resorting to that evidence and, thus, the father was not prejudiced by thealleged error (see Matter of Perez vSepulveda, 60 AD3d 1072, 1073 [2009]; Matter of Jaeger v Jaeger, 207 AD2d448, 449 [1994]; cf. People v Qike Huang, 284 AD2d 417 [2001]).
"The extent to which the noncustodial parent may exercise parenting time is a mattercommitted to the sound discretion of the hearing court to be determined on the basis of the bestinterests of the child" (Bluemer vBluemer, 47 AD3d 652, 653 [2008]). Here, there was a sound and substantial basis inthe record for the Supreme Court's award of alternate weekend visitation to the father withprovision for visitation on alternate major holidays (id.). Skelos, J.P., Fisher, Santucciand Leventhal, JJ., concur.