| Matter of DeViteri v Saldana |
| 2012 NY Slip Op 04014 [95 AD3d 1221] |
| May 23, 2012 |
| Appellate Division, Second Department |
| In the Matter of Josephine D. Saenz DeViteri,Appellant, v Vincent Saldana, Respondent. |
—[*1] Dreyer Law Offices, PLLC, Newburgh, N.Y. (Alex Smith of counsel), for respondent. Martin N. Ashley, Somers, N.Y., attorney for the child.
In a proceeding pursuant to Family Court Act article 6, the mother appeals from so much ofan order of the Family Court, Westchester County (Klein, J.), entered September 2, 2011, as,after a hearing, denied her petition for sole legal and physical custody of the subject child andgranted that branch of the father's petition which was for physical custody of the subject child tohim.
Ordered that the order is affirmed insofar as appealed from, with costs.
The mother waived her right to challenge the admission of the court-ordered forensic andprobation reports, as she was represented by counsel when she stipulated to the admission of thereports into evidence (see People vGreen, 92 AD3d 953, 954 [2012]; Matter of James Jerome C. v Mary Elizabeth J., 31 AD3d 1184,1185 [2006]).
"The essential consideration in any custody controversy is the best interests of the child" (Matter of McDonough v McDonough,73 AD3d 1067, 1068 [2010] [internal quotation marks omitted]; see Eschbach vEschbach, 56 NY2d 167, 171 [1982]). "The best interests of the child are determined by areview of the totality of the circumstances" (Matter of Garcia v Fountain, 82 AD3d 979, 980 [2011]). "Factorsto be considered in determining the child's best interests include the quality of the homeenvironment and the parental guidance the custodial parent provides for the child, the ability ofeach parent to provide for the child's emotional and intellectual development, the financial statusand 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 parent might have on the child's relationship with theother parent" (Matter of McDonough v McDonough, 73 AD3d at 1068 [internalquotation marks omitted]; see Miller v Pipia, 297 AD2d 362, 364 [2002]). "As a custodydetermination depends to a great extent upon an assessment of the character and credibility of theparties and witnesses, the findings of the Family Court will not be disturbed unless they lack asound and substantial basis in the record" (Matter of Tercjak v Tercjak, 49 AD3d 772, 772 [2008]; see Matter of McCormick v Dixon, 78AD3d 708 [2010]).[*2]
Contrary to the mother's contention, the Family Court'sdetermination that it was in the best interests of the subject child to award physical custody of thechild to the father was supported by a sound and substantial basis in the record. Although theevidence adduced at the hearing indicated that both parents were loving and competentcaregivers, the evidence also demonstrated that the father had shown a greater ability andwillingness than the mother to foster the child's relationship with the other parent (see Matter of Martinez v Hyatt, 86AD3d 571, 572 [2011]; McVeigh vCurry 74 AD3d 915, 916 [2010]; Matter of Tori v Tori, 67 AD3d 1021 [2009]).
The mother's remaining contentions are either without merit or not properly before thisCourt. Skelos, J.P., Dickerson, Eng and Austin, JJ., concur.