| Matter of Kreischer v Perry |
| 2011 NY Slip Op 03067 [83 AD3d 841] |
| April 12, 2011 |
| Appellate Division, Second Department |
| In the Matter of Michelle Kreischer, Respondent, v DavidPerry, Appellant. (Proceeding No. 1.) In the Matter of David Perry, Appellant, v MichelleKreischer, Respondent. (Proceeding No. 2.) |
—[*1] Judd & Moss, P.C., Ronkonkoma, N.Y. (Francine H. Moss of counsel), for respondent. Kerry Sloane Bassett, Central Islip, N.Y., attorney for the child.
In related child custody proceedings pursuant to Family Court Act article 6, the fatherappeals from an order of the Family Court, Suffolk County (Orlando, R.), dated July 1, 2010,which, after a hearing, granted the mother's petition for sole custody of the parties' child and, ineffect, denied his petition for sole custody of the child.
Ordered that the order is affirmed, with costs to the mother.
The court's paramount concern in any custody dispute is to determine, under the totality ofthe circumstances, what is in the best interests of the child (see Eschbach v Eschbach, 56NY2d 167, 171 [1982]; Matter of Julie vWills, 73 AD3d 777 [2010]; Matter of Louis M. v Administration for Children's Servs., 69 AD3d633, 634 [2010]). Factors to be considered include the quality of the home environment andthe parental guidance the custodial parent provides for the child, the ability of each parent toprovide for the child's emotional and intellectual development, the financial status and ability ofeach parent to provide for the child, the relative fitness of the respective parents, and the effect anaward of custody to one parent might have on the child's relationship with the other parent(see Eschbach v Eschbach, 56 NY2d at 171-172; Matter of Francois v Hall, 73 AD3d 1055 [2010]; Matter of Elliott v Felder, 69 AD3d623 [2010]). Since custody determinations depend to a great extent upon an assessment ofthe character and credibility of the parties and witnesses, deference is accorded to the trial court'sfindings, and such findings will not be disturbed unless they lack a sound and substantial basis inthe record (see Eschbach v Eschbach, 56 NY2d at 173; Matter of Otero v Nieves, 77 AD3d756, 756-757 [2010]; Matter of Julie v Wills, 73 AD3d at 777).[*2]
Contrary to the father's contention, the Family Court'sdetermination to award sole custody of the infant child to the mother has a sound and substantialbasis in the record. Significantly, the Family Court concluded, based on a credibilitydetermination to which we accord great deference, that the mother was more willing than thefather to assure meaningful contact between the child and the other parent (see Matter of Pappas v Kells, 77 AD3d952, 953-954 [2010]; Matter of Toriv Tori, 67 AD3d 1021, 1021 [2009]; Matter of Honeywell v Honeywell, 39 AD3d 857 [2007]).Furthermore, the Family Court was not required to sua sponte order a forensic evaluation of themother, as there was no discernable legitimate purpose for a court-ordered forensic evaluation inthis case, and the Family Court possessed sufficient information to render an informed decisionregarding custody consistent with the subject child's best interests (see Family Ct Act§ 251; Matter of Pappas v Kells, 77 AD3d at 954; Matter of Rhodie v Nathan, 67 AD3d687 [2009]; cf. Matter of Nalty vKong, 59 AD3d 723, 724 [2009]). Rivera, J.P., Dickerson, Lott and Cohen, JJ., concur.
Motion by the attorney for the child to strike the appellant's reply brief on an appeal from anorder of the Family Court, Suffolk County, dated July 1, 2010, on the ground that it improperlyraises arguments for the first time on appeal and refers to matter dehors the record. By decisionand order on motion of this Court dated February 9, 2011, the motion was held in abeyance andreferred to the panel of Justices hearing the appeal for determination upon the argument orsubmission of the appeal.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, andupon the argument of the appeal, it is
Ordered that the motion is denied. Rivera, J.P., Dickerson, Lott and Cohen, JJ., concur.