| Matter of Williams v Dowgiallo |
| 2011 NY Slip Op 09339 [90 AD3d 942] |
| December 20, 2011 |
| Appellate Division, Second Department |
| In the Matter of Kellie Williams, Respondent, v ErikDowgiallo, Appellant. |
—[*1] Tor Jacob Worsoe, Jr., Holtsville, N.Y., for respondent. Rachel A. Camillery, Babylon, N.Y., attorney for the child.
In a custody proceeding commenced by the mother pursuant to Family Court Act article 6, inwhich the father cross-petitioned for custody of the subject child, the father appeals from (1) anorder of the Family Court, Suffolk County (Lechtrecker, Ct. Atty. Ref.), dated November 8,2010, which, after a hearing, inter alia, granted the mother's petition, denied his cross petition,and awarded the mother custody of the subject child, and (2) a resettled order of the same courtdated November 24, 2010, which, after a hearing, among other things, granted the mother'spetition, denied his cross petition, awarded the mother custody of the subject child, and limitedhis "parenting time" to specified visitation.
Ordered that the appeal from the order dated November 8, 2010, is dismissed, without costsor disbursements, as that order was superseded by the resettled order dated November 24, 2010;and it is further,
Ordered that the resettled order dated November 24, 2010, is affirmed, without costs ordisbursements.
At the time the instant custody proceeding was commenced by the mother in March 2010,there was no custody order in effect. During the pendency of the proceeding, the father wasawarded temporary custody without a hearing. The award of temporary custody to a parent beforea hearing is conducted is only one factor to be considered in awarding permanent custody; thepermanent award made after a hearing is treated as an initial custody determination, and theFamily Court is not required to engage in a change-of-circumstances analysis before awardingcustody to the other parent (see Matterof Quinones v Gonzalez, 79 AD3d 893, 894 [2010]; Matter of Khaykin v Kanayeva, 47 AD3d 817 [2008]).
"Custody determinations are ordinarily a matter of discretion for the hearing court, [*2]whose determination will not be set aside on appeal unless it lacks asound and substantial basis in the record" (Matter of Ortiz v Maharaj, 8 AD3d 574, 574 [2004]; see Matter of Gant v Chambliss, 86AD3d 612, 613 [2011]; Matter of Johnson v Johnson, 309 AD2d 750, 751 [2003]).The evidence adduced at the hearing presented a sound and substantial basis in the record forawarding permanent custody to the mother.
There is no merit to the father's remaining contention that the Family Court should have, suasponte, appointed a forensic evaluator (see Matter of Kreischer v Perry, 83 AD3d 841, 842 [2011]; Matter of Rhodie v Nathan, 67 AD3d687 [2009]). Rivera, J.P., Balkin, Eng and Austin, JJ., concur.