| Matter of Lawlor v Eder |
| 2013 NY Slip Op 03096 [106 AD3d 739] |
| May 1, 2013 |
| Appellate Division, Second Department |
| In the Matter of Daniel C. Lawlor,Appellant, v Jasmynn Eder, Respondent. |
—[*1] John M. Zenir, Mineola, N.Y., for respondent. William A. Sheeckutz, East Meadow, N.Y., attorney for the child.
In a child custody proceeding pursuant to Family Court Act article 6, the fatherappeals, as limited by his brief, from so much of an order of the Family Court, NassauCounty (LoPresti, Ct. Atty. Ref.), dated March 1, 2012, as, after a hearing, in effect,granted the mother's application to modify a prior order of temporary custody of the samecourt entered August 24, 2009, and, upon awarding the parties joint legal custody,awarded the mother permanent residential custody of the subject child with visitation tothe father, and denied that branch of the father's petition which was to modify the priororder so as to award him permanent residential custody.
Ordered that the order dated March 1, 2012, is affirmed insofar as appealed from,with costs.
The Family Court's paramount concern in any custody dispute is to determine, underthe totality of the circumstances, what is in the best interests of the child (seeEschbach v Eschbach, 56 NY2d 167, 171-172 [1982]; Matter of Guzman v Pizarro,102 AD3d 964 [2013]), and there is no prima facie right to custody of the child ineither parent (see Friederwitzer v Friederwitzer, 55 NY2d 89, 93 [1982]; Matter of Andrews v Mouzon,80 AD3d 761 [2011]). "Since any custody determination depends to a great extentupon the hearing court's assessment of the credibility of the witnesses and of thecharacter, temperament, and sincerity of the parties, its findings are generally accordedgreat deference and will not be disturbed unless they lack a sound and substantial basis inthe record" (Matter ofO'Loughlin v Sweetland, 98 AD3d 983, 984 [2012] [internal quotation marksomitted]; see Matter of Griffin vNikiea Moore-James, 104 AD3d 685 [2d Dept 2013]).
Here, the Family Court carefully considered the parties' testimony and thoroughlyexamined all the evidence and relevant circumstances in coming to its determinationgranting permanent residential custody to the mother. The Family Court found that, whileboth parents had exhibited shortcomings as parents, it was undisputed that the childloved both parents and was happy in the custody of either the mother or the father andthat both parents were capable of providing for the child's emotional and intellectualdevelopment. However, the Family Court also found that during the period when thechild was in the temporary custody of the father, the father had refused [*2]to encourage and foster meaningful contact between thechild and the mother, and that such conduct was adverse to the child's best interests andhad been harmful to the child. The Family Court also found that the mother was theparent more likely to assure meaningful contact between the child and the noncustodialparent. A custodial parent's interference with the relationship between a child and thenoncustodial parent is deemed an act so inconsistent with the best interests of thechildren as to, per se, raise a strong probability that the offending party is unfit to act ascustodial parent (see Matter ofPurse v Crocker, 95 AD3d 1216, 1217 [2012]; Young v Young, 212AD2d 114, 122-123 [1995]). As the Family Court's findings have a sound and substantialbasis in the record, they will not be disturbed.
The father's remaining contention is without merit. Eng, P.J., Rivera, Angiolillo andBalkin, JJ., concur.