Davis v. Lake

183 N.Y.S.3d 322 (Mem)

In the Matter of Kadeem DAVIS, appellant,

v.Crystal LAKE, respondent.

(Proceeding No. 1)

In the Matter of Crystal Lake, respondent,

v.Kadeem Davis, appellant.

(Proceeding No. 2)

2021–05273

Docket Nos. V–5796–17, V–7822–17

Supreme Court, Appellate Division, Second Department, New York.

Submitted—January 24, 2023

March 8, 2023

Richard Cardinale, Brooklyn, NY, for appellant.

Daniel E. Lubetsky, Jamaica, NY, for respondent.

COLLEEN D. DUFFY, J.P., PAUL WOOTEN, WILLIAM G. FORD, LILLIAN WAN, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Queens County (Emily M. Martinez, Ct. Atty. Ref.), dated June 21, 2021. The order, insofar as appealed from, after a hearing, granted the mother's petition for sole legal and physical custody of the parties’ child, with parental access to the father.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The mother and the father are the parents of a child born in 2016. As is relevant to this appeal, in 2017, the mother filed a petition for sole legal and physical custody of the child. The father opposed. After a hearing, the Family Court, inter alia, awarded the mother sole legal and physical custody of the child, with parental access to the father. The father appeals.

In determining questions of child custody, the primary concern is the best interests of the child, taking into consideration the totality of the circumstances (see Eschbach v. Eschbach, 56 N.Y.2d 167, 174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Gooler v. Gooler, 107 A.D.3d 712, 712, 966 N.Y.S.2d 208 ). In determining a child's best interests, the court must consider, among other things, " ‘(1) which alternative will best promote 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 the child's overall well being, and foster the child's relationship with the noncustodial parent; and (5) the child's desires’ " ( Lavery v. O'Sullivan, 205 A.D.3d 1013, 1014, 169 N.Y.S.3d 632, quoting Matter of Supangkat v. Torres, 101 A.D.3d 889, 890, 954 N.Y.S.2d 915 ; see Matter of Goundan v. Goundan, 210 A.D.3d 1087, 1088, 179 N.Y.S.3d 694 ). Custody determinations depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, and therefore, deference is accorded to the trial court's findings in this regard (see Matter of Gooler v. Gooler, 107 A.D.3d at 712, 966 N.Y.S.2d 208 ). Such findings will not be disturbed unless they lack a sound and substantial basis in the record (see Lavery v. O'Sullivan, 205 A.D.3d at 1014, 169 N.Y.S.3d 632 ; Matter of Khan v. Potdar, 185 A.D.3d 822, 822, 127 N.Y.S.3d 531 ; Matter of Batista v. Falcon, 148 A.D.3d 698, 699, 48...