Gillespy v. Ceus

2021 NY Slip Op 07541

Romell Gillespy, respondent, v. Betty Ceus, appellant.

No. 2020-01419, (Index No. 53054/17)

Supreme Court of New York, Second Department

December 29, 2021

Daniel P. Moskowitz, Glen Head, NY, for appellant.

Helene Bernstein, Brooklyn, NY, for respondent.

Jennifer Marshall, Brooklyn, NY, attorney for the child.

SYLVIA O. HINDS-RADIX, J.P. SHERI S. ROMAN FRANCESCA E. CONNOLLY DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action for a divorce and ancillary relief, the defendant appeals from an interlocutory judgment of the Supreme Court Kings County (Jeffrey S. Sunshine, J.), entered November 27 2019. The interlocutory judgment, insofar as appealed from upon a decision of the same court dated August 21, 2019, made after a nonjury trial, awarded the plaintiff sole legal and physical custody of the parties' child.

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

The parties have one child together, born in 2008. In 2017, the plaintiff commenced this action seeking, inter alia, a divorce and sole legal and physical custody of the child. After a nonjury trial on the issue of custody, the Supreme Court, among other things, awarded the plaintiff sole legal and physical custody of the child. The defendant appeals.

"An award of custody must be based upon the best interests of the child, and there is no prima facie right to the custody of the child in either parent" (Bressler v Bressler, 122 A.D.3d 659, 659). "In determining a child's best interest, the court must consider, among other things, (1) the parental guidance provided by the custodial parent; (2) each parent's ability to provide for the child's emotional and intellectual development; (3) each parent's ability to provide for the child financially; (4) each parent's relative fitness; and (5) the effect an award of custody to one parent might have on the child's relationship with the other parent" (Matter of Williamson v Williamson, 182 A.D.3d 604, 605-606). "The existence of any one factor cannot be determinative on appellate review since the court is to consider the totality of the circumstances" (Turisse v. Turisse, 194 A.D.3d 1090, 1092). "Inasmuch as a court's custody determination is dependent 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...