Diagne v. Admin. for Children's Servs.

189 A.D.3d 1584

135 N.Y.S.3d 283 (Mem)

In the Matter of Baba DIAGNE, petitioner-respondent,

v.ADMINISTRATION FOR CHILDREN'S SERVICES, respondent-respondent,Adama Faty, appellant.

2020–01687

Docket Nos. V–18106–18, V–18107–18, V–18108–18

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

Submitted—November 24, 2020

December 30, 2020

Kyle Sosebee, Brooklyn, NY, for appellant.

Heath J. Goldstein, Jamaica, NY, for petitioner-respondent.

James E. Johnson, Corporation Counsel, New York, N.Y. (Scott Shorr and Deborah E. Wassel of counsel), for respondent-respondent.

Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Judith Stern of counsel), attorney for the children.

WILLIAM F. MASTRO, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Queens County (Emily Ruben, J.), dated January 16, 2020. The order, after a hearing, granted the father's petition for sole legal and physical custody of the parties' children, and awarded the mother certain parental access.

ORDERED that the order is affirmed, without costs or disbursements.

The father and the mother, who are married but have been separated since 2015, are the parents of three minor children. The children have been living with the father since August 2017. In September 2018, the father filed a petition seeking sole legal and physical custody of the children. In an order dated January 16, 2020, after a hearing, the Family Court granted the father's petition and awarded the mother certain parental access. The mother appeals.

"The paramount consideration in any custody dispute is the best interests of the child" ( Matter of Khan v. Potdar, 185 A.D.3d 822, 822–823, 127 N.Y.S.3d 531 ; see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). " ‘The best interests of the children must be determined by a review of the totality of the circumstances’ " ( Matter of Shah v. Shah, 186 A.D.3d 1692, 1693, 132 N.Y.S.3d 45, quoting Matter of Suarez v. Suarez, 176 A.D.3d 830, 832, 112 N.Y.S.3d 218 ). "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’ " (Matter of Khan v. Potdar, 185 A.D.3d at 823, 127 N.Y.S.3d 531, quoting Matter of Supangkat v. Torres, 101 A.D.3d 889, 890, 954 N.Y.S.2d 915 ).

"A custody determination depends greatly ‘upon an assessment of the character and credibility of parties and witnesses’ " ( Matter of Ejiogu v. ACS–Kings, 176 A.D.3d 816, 818, 111 N.Y.S.3d 405, quoting Matter of Langlaise v. Sookhan, 48 A.D.3d 685, 685, 850 N.Y.S.2d 917 ). "Such determinations will not be disturbed unless they lack a sound and substantial basis in the record" ( Matter of Khan v. Potdar, 185 A.D.3d at 823, 127 N.Y.S.3d 531 ).

The Family Court's determination that the children's best interests would be served by awarding sole legal and physical custody to the father has a sound and substantial basis in the record and will not be disturbed (see Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Shah v. Shah, 186 A.D.3d 1692, 132 N.Y.S.3d 45 ; Matter of Khan v. Potdar, 185 A.D.3d 822, 127...