| Matter of Reyes v Polanco |
| 2011 NY Slip Op 03074 [83 AD3d 849] |
| April 12, 2011 |
| Appellate Division, Second Department |
| In the Matter of Rosario Reyes, Respondent, v BienvenidoPolanco, Appellant. (Proceeding No. 1.) In the Matter of Bienvenido Polanco, Appellant, vRosario Reyes, Respondent. (Proceeding No. 2.) |
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In related child custody proceedings pursuant to Family Court Act article 6, the fatherappeals, as limited by his brief, from so much of an order of the Family Court, Kings County(Feldman, J.H.O.), dated May 3, 2010, as, after a hearing, granted the mother's petition for solecustody of the parties' children.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
In adjudicating custody issues, the most important factor for the court to consider is the bestinterests of the children (see Eschbach v Eschbach, 56 NY2d 167 [1982]; Matter of Bonilla v Amaya, 58 AD3d728, 729 [2009]), which requires an evaluation of the "totality of [the] circumstances"(Friederwitzer v Friederwitzer, 55 NY2d 89, 95 [1982]; see Haggerty v Haggerty, 78 AD3d998, 999 [2010]). Determinations regarding custody are largely dependent upon theassessment of the witnesses' credibility and upon the character, temperament, and sincerity of theparents and, therefore, such findings of the trial court will not be disturbed if they are supportedby a sound and substantial basis in the record (see Matter of Louise E.S. v W. Stephen S.,64 NY2d 946, 947 [1985]; Matter ofQuinones v Gonzalez, 79 AD3d 893, 894 [2010]; Haggerty v Haggerty, 78AD3d at 999; Matter of Otero vNieves, 77 AD3d 756, 756 [2010]).[*2]
Here, there was sound and substantial basis in the recordto grant the mother's petition for sole custody of the parties' son and daughter. The evidence atthe hearing established that the father had severely alienated the children, especially the son,from the mother.
The mother and father lived together for several years with their two children, among others.The mother left the father in 2008, taking the children with her, and alleging that the fathersexually and physically abused her. By mutual arrangement between the mother and father, thefather had visitation with the children.
After the father refused to return the son to the mother after a visitation, the mother filed thesubject petition. Afterwards, the son repeatedly refused to return to live with the mother, and thedaughter would shun the mother when that child returned from visiting the father. Testimony waspresented that, during the father's supervised visitation exchanges occurring after this proceedingwas commenced, the father made inappropriate statements in the presence of the children aboutthe ongoing litigation, and also made frequent disparaging comments about the mother and herparenting skills. In addition, the evidence established, inter alia, that the father had encouragedthe children to falsely accuse their mother of corporal punishment, such as a report by the son tothe New York City Administration for Children's Services that he had been thrown or fell out ofa second-story window while in the mother's care. Moreover, the father influenced the children tobehave negatively toward the mother, as demonstrated by the son, who challenged the mother'sauthority at his father's direction. The father also exposed the children to movies containingage-inappropriate images, causing the children to become frightened, and advised his son thatthere were "old scary people" at the mother's house who eat children.
In light of the foregoing, the Family Court's determination, inter alia, that the mother wasmore fit to be the custodial parent than the father, and was also more likely to assure meaningfulcontact between the children and the noncustodial parent, had a sound and substantial basis in therecord (see Bourne v Bristow, 66AD3d 621, 621-622 [2009]; Matter of Plaza v Plaza, 305 AD2d 607, 607 [2003];Matter of Raybin v Raybin, 205 AD2d 918, 921 [1994]; O'Connor v O'Connor,146 AD2d 909, 910 [1989]; Lohmiller v Lohmiller, 140 AD2d 497, 498 [1988];Daghir v Daghir, 82 AD2d 191, 194 [1981], affd 56 NY2d 938 [1982]).Accordingly, the Family Court's determination will not be disturbed on appeal. Skelos, J.P., Eng,Austin and Cohen, JJ., concur.