Goundan v. Goundan

210 A.D.3d 1087

179 N.Y.S.3d 694

In the Matter of Ashton K. GOUNDAN, respondent,

v.Latchmani GOUNDAN, appellant.

2020–08793

Docket Nos. V-2124-18, V-2125-18/19A/19B, V-22039-18/19A/19B, V-22040-18

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

Submitted—October 24, 2022

November 30, 2022

Larry S. Bachner, New York, NY, for appellant.

Lance K. Dandrige, Jamaica, NY, for respondent.

Nicole Barnum, New York, NY, attorney for the children.

VALERIE BRATHWAITE NELSON, J.P., LARA J. GENOVESI, DEBORAH A. DOWLING, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the mother appeals from an amended final order of the Family Court, Queens County (Elizabeth Fassler, J.), dated August 24, 2020. The amended final order, insofar as appealed from, after a hearing, granted the father's petition for sole legal and physical custody of the parties’ children and denied the mother's petition for sole legal and physical custody of the children. The notice of appeal from an order dated August 21, 2020, is deemed to be a notice of appeal from the amended final order dated August 24, 2020 (see CPLR 5512[a] ).

ORDERED that the amended final order dated August 24, 2022, is affirmed insofar as appealed from, without costs or disbursements.

The parties are the married parents of two children, born in 2009 and 2015, respectively. In 2018, both parties filed petitions seeking sole legal and physical custody of the children.

After a hearing, the Family Court, inter alia, awarded the father sole legal and physical custody of the children. The mother appeals.

In determining questions of child custody, the primary concern is the best interests of the children, 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 ). The factors to be considered include " ‘the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent’ " ( Matter of McLennan v. Gordon, 122 A.D.3d 742, 742, 996 N.Y.S.2d 339, quoting Matter of Islam v. Lee, 115 A.D.3d 952, 953, 982 N.Y.S.2d 772 ). "A parent seeking to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed relocation would be in the child's best interests" ( Matter of Gustave v. Harris, 176 A.D.3d 937, 938, 112 N.Y.S.3d 147 ). In determining whether a proposed move is in the children's best interests, courts are "free to consider and give appropriate weight to all of the factors that may be relevant to the determination" ( Matter of Tropea v. Tropea, 87 N.Y.2d 727, 740, 642 N.Y.S.2d 575, 665 N.E.2d 145 ). In the context of an initial custody determination, the strict application of the factors relevant to relocation petitions (see Matter of Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575, 665 N.E.2d 145 ) is not required (see Matter Yu Chao Tan v. Hong Shan Kuang, 136 A.D.3d 933, 934, 25 N.Y.S.3d 339 ). Instead, the proposed relocation is but one factor for the Family Court to consider in determining what is in the children's best interests (see Matter of Adegbenle v. Perez, 135 A.D.3d 857, 859, 24 N.Y.S.3d 357 ). As any determination with regard to custody turns in large part on the assessment of the credibility, character, temperament, and sincerity of the parties, the hearing court's determination should not be disturbed unless it lacks a sound and substantial basis in the record (see Matter of Cooper v. Nicholson, 167 A.D.3d 602, 604, 89 N.Y.S.3d 243 ).

Here, the Family Court's determination to award the father sole legal and physical custody of the children, with permission to relocate to New Jersey, 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 Mejia v. Llarena, 172...