| Matter of Andrews v Mouzon |
| 2011 NY Slip Op 00512 [80 AD3d 761] |
| January 25, 2011 |
| Appellate Division, Second Department |
| In the Matter of Anthony Andrews, Appellant, v KenyaMouzon, Respondent. |
—[*1] Helene Chowes, New York, N.Y., for respondent. Karen P. Simmons, Brooklyn, N.Y. (Barbara H. Dildine and Janet Neustaetter of counsel),Attorney for the Children.
In a custody and visitation proceeding pursuant to Family Court Act article 6, the fatherappeals from an order of the Family Court, Kings County (Graham, J.), dated November 9, 2009,which awarded sole custody of the subject children to the mother and only awarded himvisitation from Monday at 6:00 p.m. to Wednesday at 6:00 p.m. on alternate weeks, withadditional visitation upon agreement of the parties.
Ordered that the order is affirmed, without costs or disbursements.
An award of custody must be based upon the best interests of the child, and there is no primafacie right to the custody of the child in either parent (see Friederwitzer v Friederwitzer,55 NY2d 89, 93 [1982]; Matter ofFrancois v Hall, 73 AD3d 1055 [2010]). In considering questions of custody, the courtmust make every effort to determine what is in the best interest of the child, and what willpromote the child's welfare and happiness (see Eschbach v Eschbach, 56 NY2d 167, 171[1982]). The best interests of the child are determined by a review of the totality of thecircumstances (id. at 172).
Factors to be considered include the quality of the home environment and parental guidance,the ability of each parent to provide for the child's emotional and intellectual development, andthe financial status and ability of each parent to provide for the child (id.; see Matter of Francois v Hall, 73AD3d 1055 [2010]). The relative fitness of each parent, as well as the effect an award ofcustody to one parent might have on the child's relationship with the other parent should beconsidered (see Matter of Francois vHall, 73 AD3d 1055 [2010]). In addition, consideration should be given to any prioraward or agreement as to custody (see Eschbach v Eschbach, 56 NY2d at 171). While notdeterminative, the court should consider the child's expressed preference as an indication of whatis in the child's best interest (id. at 173). Additionally, if domestic violence is alleged, thecourt must consider the effects of such violence upon the child (see Matter of Julie v Wills, 73 AD3d777 [2010]; Matter of Moreno vCruz, 24 AD3d 780 [2005]; see also Domestic Relations Law § 240 [1]).
[*2]In making a custody determination, the court may alsoconsider the recommendation of a court-appointed expert, and the position of the attorney for thechild (see Matter of Edwards vRothschild, 60 AD3d 675 [2009]; Matter of Rolon v Medina, 56 AD3d 676 [2008]; Matter of Turnure v Turnure, 37 AD3d727 [2007]; Matter of Greene vGordon, 7 AD3d 528 [2004]).
Since weighing the factors relevant to any custody determination requires an evaluation ofthe testimony and the sincerity of the parties involved, such an evaluation is best made by thetrial court (see Eschbach v Eschbach, 56 NY2d at 173). Thus, a trial court's determinationregarding an award of custody should not be disturbed "unless it lacks a sound and substantialbasis in the record" (Matter ofFaunteleroy v Mercado, 5 AD3d 482, 482 [2004]). Similarly, the determination ofvisitation is entrusted to the sound discretion of the trial court, and such determination should notbe set aside unless it lacks a sound and substantial basis (see Matter of Wiebke v Wiebke, 77 AD3d 964 [2010]; Matter of McFarland v Smith, 53AD3d 500 [2008]).
Here, the trial court, after having had the opportunity to evaluate the testimony, consider therecommendations of a forensic expert, interview the children in camera, and consider theposition of the attorney for the children, determined that the children's best interests would beserved by an order awarding sole custody of the children to the mother and visitation to the fatherfrom Monday at 6:00 p.m. to Wednesday at 6:00 p.m. on alternate weeks. That determination issupported by the record, and should not be disturbed on appeal (see Eschbach vEschbach, 56 NY2d 167 [1982]; Matter of Francois v Hall, 73 AD3d 1055 [2010]; Matter of Turnure v Turnure, 37 AD3d727 [2007]; Matter of Faunteleroy vMercado, 5 AD3d 482 [2004]). Prudenti, P.J., Angiolillo, Florio and Sgroi, JJ., concur.