Merchan v. Hoyos

199 A.D.3d 919

154 N.Y.S.3d 479 (Mem)

In the Matter of Richard Loor MERCHAN, respondent,

v.Maribel HOYOS, appellant.

2020–02785

Docket No. V–18617–17

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

Submitted—October 19, 2021

November 17, 2021

Carol Lipton, Brooklyn, NY, for appellant.

Jeffrey C. Bluth, New York, NY, for respondent.

Lewis S. Calderon, Jamaica, NY, attorney for the child.

LEONARD B. AUSTIN, J.P., COLLEEN D. DUFFY, BETSY BARROS, 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 February 20, 2020. The order, insofar as appealed from, after a hearing, granted the father's petition for sole legal and physical custody of the parties’ child.

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

The father and the mother, who were never married, are the parents of a daughter born in 2013. In September 2017, the father filed a petition pursuant to Family Court Act article 6 seeking sole legal and physical custody of the subject child. After a hearing, the Family Court, inter alia, awarded the father sole legal and physical custody of the child. The mother appeals.

The court's paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in 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 ; Matter of Turcios v. Cordero, 173 A.D.3d 1048, 1049, 100 N.Y.S.3d 569 ). "In determining an initial petition for child custody, 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 Scott v. Thompson, 166 A.D.3d 627, 628, 87 N.Y.S.3d 211 [internal quotation marks omitted]). "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 custody determination will not be disturbed if supported by a sound and substantial basis in the record" ( Matter of Turcios v. Cordero, 173 A.D.3d at 1049, 100 N.Y.S.3d 569 ).

Here, the Family Court's determination that it was in the best interests of...