| Matter of Supangkat v Torres |
| 2012 NY Slip Op 08537 [101 AD3d 889] |
| December 12, 2012 |
| Appellate Division, Second Department |
| In the Matter of Don Supangkat, Respondent, v BanelysTorres, Appellant. (Proceeding No. 1.) In the Matter of Banelys Torres, Appellant, v DonSupangkat, Respondent. (Proceeding No. 2.) |
—[*1] Jennifer Reddin-Eliou, Whitestone, N.Y., attorney for the child.
In related child custody proceedings pursuant to Family Court Act article 6, the motherappeals from an order of the Family Court, Queens County (Friedman, J.H.O.), dated March 31,2011, which, after a hearing, in effect, granted the father's petition for sole custody of the parties'child, with visitation to the mother, and denied her petition, in effect, for sole custody of theparties' child.
Ordered that the order is reversed, on the facts and in the exercise of discretion, without costsor disbursements, the father's petition is denied, the mother's petition is granted, and the matter isremitted to the Family Court, Queens County, for further proceedings consistent herewith.
A court deciding an initial petition for child custody must determine what is in the child'sbest interests (see Matter of Swinson vBrewington, 84 AD3d 1251, 1253 [2011]; Matter of Anson v Anson, 20 AD3d 603, 604 [2005]), consideringthe totality of the circumstances, including, but not limited to, (1) which alternative will bestpromote stability; (2) the available home environments; (3) the past performance of each parent;(4) each parent's relative fitness, including his or her ability to guide the child, provide for thechild's overall well being, and foster the child's relationship with the noncustodial parent; and (5)the child's desires (see Matter of Swinson v Brewington, 84 AD3d at 1253; Matter ofAnson v Anson, 20 AD3d at 604). Moreover, if domestic violence is proved, the court mustconsider its effects on the child (see Domestic Relations Law § 240 [1]; Matter of Andrews v Mouzon, 80AD3d 761, 762 [2011]; Matter ofJulie v Wills, 73 AD3d 777, 777 [2010]). Inasmuch as a court's custody determination isdependent in large part upon its assessment of the witnesses' credibility and upon the character,temperament, and sincerity of the parents, the court's exercise of its discretion will not bedisturbed if supported by a sound and substantial basis in the record (see Matter of Reyes v Polanco, 83AD3d 849, 850 [2011]; Matter ofDaniel R. [Lucille R.], 70 AD3d 839, 842 [2010]).[*2]
In this case, the Family Court's award of custody to thefather lacked a sound and substantial basis in the record. In particular, the court gave inexplicablylittle weight to its own findings regarding the father's domestic violence against the mother andhis startling lack of judgment on several occasions with respect to the parties' child (see Matter of Rodriguez v Guerra, 28AD3d 775, 777 [2006]). Additionally, it gave undue weight to the mother's temporaryhousing situation. Under the circumstances presented here, the court should have denied thefather's petition for sole custody of the child, and granted the mother's petition for sole custody ofthe child. The matter must be remitted to the Family Court, Queens County, however, for thecourt to determine a visitation schedule for the father. Rivera, J.P., Balkin, Leventhal andHinds-Radix, JJ., concur.