Khan v. Potdar

185 A.D.3d 822

127 N.Y.S.3d 531

In the Matter of Tausif KHAN, appellant,

v.Preeti POTDAR, respondent.

2019–03472

Docket Nos. V–5115–15, V–10407–15

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

Submitted—June 22, 2020

July 15, 2020

Lewis S. Calderon, Jamaica, NY, for appellant.

Beth E. Goldman, New York, N.Y. (Ione K. Curva of counsel), for respondent.

Karen P. Simmons, Brooklyn, N.Y. (Eva Stein, Janet Neustaetter, and Lauren Flynn of counsel), attorney for the child.

MARK C. DILLON, J.P., HECTOR D. LASALLE, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Kings County (Emily M. Martinez, Ct. Atty. Ref.), dated February 21, 2019. The order, after a hearing, granted the mother's cross petition for sole legal and physical custody of the parties' child, denied the father's petition for sole legal and physical custody of the child, and awarded the father certain parental access.

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

The parties, who are married, are the parents of a son, born in 2012. The parties separated in June 2014. The father filed a petition seeking sole legal and physical custody of the child, and the mother cross-petitioned for sole legal and physical custody of the child. After a hearing, the Family Court granted the mother's cross petition, denied the father's petition, and awarded the father certain parental access. The father appeals.

The paramount consideration in any custody dispute is the best interests of the child (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). 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 Supangkat v. Torres, 101 A.D.3d 889, 890, 954 N.Y.S.2d 915 ). Additionally, if domestic violence is alleged, and proven by a preponderance of the evidence, "the court must consider the effect of such domestic violence upon the best interests of the child," along with all the other relevant factors ( Domestic Relations Law § 240[1][a] ; see Matter of Biancoviso v. Barona, 150 A.D.3d 990, 992, 54 N.Y.S.3d 642 ; Matter of Tejada v. Tejada, 126 A.D.3d 985, 986, 6 N.Y.S.3d 122 ; Matter of Wissink v. Wissink, 301 A.D.2d 36, 39, 749 N.Y.S.2d 550 ). 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 Family Court, which has direct access to the parties (see Eschbach v. Eschbach, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Gooler v. Gooler, 107 A.D.3d 712, 966 N.Y.S.2d 208 ). Such determinations will not be disturbed unless they lack a sound and substantial basis in the record (see Matter of Batista v. Falcon, 148 A.D.3d 698, 699, 48 N.Y.S.3d 716 ).

We disagree with the father's contention that the mother engaged in parental alienation. Parental alienation is "an act so inconsistent with the best interests of the [child] as to, per se, raise a strong probability that the [offending party] is unfit to act as custodial parent" ( Entwistle v. Entwistle, 61 A.D.2d 380, 384–385, 402 N.Y.S.2d 213 ; see Matter of Ruiz v. Carie, 179 A.D.3d 1069, 1069–1070, 114 N.Y.S.3d 709 ; Matter of Goodman v. Jones, 146 A.D.3d 884, 885, 45 N.Y.S.3d 192 ). Although the father did not see the child for 10 months after the mother left the marital home with the child, the father failed to present sufficient evidence of parental alienation (see Matter of Sanders v. Jaco, 148 A.D.3d 812, 813, 48 N.Y.S.3d 729 ). The record demonstrates that the mother offered the father time with the child, but he either did not respond to the offers or declined to take advantage of them. We agree with the Family Court's determination that the mother was more likely than the father to foster the child's relationship with the noncustodial parent going forward.

The Family Court's determination that the child's best interests would be served by awarding sole legal and physical custody to the...