| Matter of Moran v Cortez |
| 2011 NY Slip Op 05072 [85 AD3d 795] |
| June 7, 2011 |
| Appellate Division, Second Department |
| In the Matter of Sonia M. Moran, Appellant, v RafaelCortez, Respondent. (Proceeding No. 1.) In the Matter of Rafael Cortez, Respondent, v Sonia M.Moran, Appellant. (Proceeding No. 2.) |
—[*1] Marc E. Strauss, Jamaica, N.Y., for respondent. Peter Dailey, New York, N.Y., Attorney for the Child.
In related child custody and visitation proceedings pursuant to Family Court Act article 6, themother appeals from an order of the Family Court, Queens County (Negron, Ct. Atty. Ref.),dated June 17, 2010, which, after a hearing, in effect, granted the father's cross petition forcustody of the subject child and denied her petition for custody. By decision and order on motionof this Court dated July 22, 2010, enforcement of the order appealed from was stayed pendinghearing and determination of the appeal.
Ordered that the order is reversed, on the facts and in the exercise of discretion, without costsor disbursements, the mother's petition for custody of the child is granted, the father's crosspetition is denied, and the matter is remitted to the Family Court, Queens County, for furtherproceedings consistent herewith.
The parties are the parents of a child who was born on October 1, 2001. The parties residedtogether in an apartment in Flushing, Queens, until the mother and child moved into anapartment in Flushing with the mother's sister, brother-in-law, and niece, and the father movedinto his own apartment in Corona, Queens. On August 6, 2006, the mother filed a petition forcustody of the child. On August 9, 2007, the father filed a cross petition for custody. Byagreement, the father and child have enjoyed regular weekend visits during the pendency of theseproceedings. After a custody hearing, which included the testimony of the parents, the father'semployer, and a court-appointed forensic evaluator, and after an in camera interview with thechild, the Family Court awarded custody to the father. We reverse.
There is "no prima facie right to the custody of the child in either parent" (DomesticRelations Law § 70 [a]; § 240 [1] [a]; see Friederwitzer v Friederwitzer, 55NY2d 89 [1982]; Matter of Riccio vRiccio, 21 AD3d 1107 [2005]). The essential consideration in making an award ofcustody is the best interests of the child (see Friederwitzer v Friederwitzer, 55 NY2d at94; Matter of McIver-Heyward v [*2]Heyward, 25 AD3d 556 [2006]). "Factors to be consideredinclude 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" (Mohen v Mohen, 53 AD3d 471, 473 [2008] [internal quotationmarks omitted]). This Court's authority in custody determinations is as broad as that of thehearing court (see Matter of Louise E.S. v W. Stephen S., 64 NY2d 946, 947 [1985]), andwhile we are mindful that the hearing court has an advantage in being able to observe thedemeanor and assess the credibility of witnesses, we "would be seriously remiss if, simply indeference to the finding of a Trial Judge," we allowed a custody determination to stand where itlacks a sound and substantial basis in the record (Matter of Gloria S. v Richard B., 80AD2d 72, 76 [1981]; see Matter ofMarrero v Centeno, 71 AD3d 771 [2010]; Matter of Larkin v White, 64 AD3d 707, 708-709 [2009]).
In awarding the father custody, the Family Court failed to afford sufficient weight to thechild's need for stability, and the impact of uprooting her from her current home and transferringher to a different school (see Matter of Bennett v Jeffreys, 40 NY2d 543, 550 [1976];see also Matter of Larkin v White, 64 AD3d at 709; Matter of Moorehead vMoorehead, 197 AD2d 517, 519 [1993]; Meirowitz v Meirowitz, 96 AD2d 1030[1983]). The father testified that if he were awarded custody he would transfer the child from hercurrent school in Queens, which was located within walking distance from where the motherresided, to a school in Manhattan near his place of employment. The father's proposed weekdayroutine would entail waking the child earlier in the morning, traveling 45 minutes on publictransportation from Queens to Manhattan, caring for the child in the father's office for two hourseach day after school, and returning home at 6:00 or 7:00 p.m. This schedule, the forensicevaluator agreed, would be "long" and "grueling" for the child.
The record indicates that both parents were caring and affectionate and that neither party wasmore fit to parent than the other. There was no showing that either party could not financiallyprovide for the child. However, there is evidence in the record that the mother would providemore direct care to the child due to her work schedule. Furthermore, the evidence adduced at thehearing established that the mother was capable of continuing to foster the child's relationshipwith her father, as she has done in the past, to the benefit of the child's emotional and intellectualdevelopment. Under the circumstances, the interests of the child would best be served bypreserving the status quo, and leaving the child in the custody of her mother where, by allaccounts, she is thriving (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Matter of Peroglu v Baez, 54 AD3d416, 418 [2008]).
We deem it appropriate that the father's liberal visitation continue. Accordingly, we remit thematter to the Family Court, Queens County, for further proceedings, including the issuance of apermanent visitation order. Covello, J.P., Leventhal, Lott and Miller, JJ., concur.