Pritchard v. Coelho

177 A.D.3d 887

115 N.Y.S.3d 37

In the Matter of Vanessa PRITCHARD, Appellant,

v.Fernando COELHO, Respondent.

(Proceeding No. 1)

In the Matter of Fernando Coelho, Respondent,

v.Vanessa Pritchard, Appellant.

(Proceeding No. 2)

2018–10422

Docket Nos. V–0447–13, V–3441–13

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

Argued—October 11, 2019

November 20, 2019

Vanessa Pritchard, Staten Island, NY, appellant pro se.

DeGuerre Law Firm, P.C., Staten Island, N.Y. (Anthony DeGuerre of counsel), for respondent.

Elliot Green, Brooklyn, NY, attorney for the child.

WILLIAM F. MASTRO, J.P., COLLEEN D. DUFFY, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Richmond County (Peter F. DeLizzo, J.), dated August 1, 2018. The order, after a hearing, dismissed the mother's petition for sole legal and physical custody of the parties' child, and granted the father's cross petition for sole legal and physical custody of the child, with supervised parental access to the mother.

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

The father was awarded custody of the parties' child after a fact-finding hearing at which evidence was adduced regarding multiple injuries sustained by the child while in the mother's care, and the mother's substance abuse issues which remained untreated. The mother appeals.

To the extent the mother raises issues regarding an order of temporary custody issued by the Family Court, those issues are academic. The order awarding the father temporary custody of the child was superseded by the order awarding the father permanent custody, and the temporary order is no longer in effect. Any alleged defect in the temporary order does not render defective the permanent order, which was based upon a full and fair hearing (see Matter of Saylor v. Bukowski, 170 A.D.3d 862, 863, 96 N.Y.S.3d 119 ; Matter of Miedema v. Miedema, 144 A.D.3d 803, 804, 40 N.Y.S.3d 559 ; Haggerty v. Haggerty, 78 A.D.3d 998, 999, 911 N.Y.S.2d 639 ).

The mother's contention that the Family Court erred in granting sole legal and physical custody to the father is without merit. 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 Fernandez v. Saunders, 174 A.D.3d 531, 532, 101 N.Y.S.3d 900 ; Matter of Turcios v. Cordero, 173 A.D.3d 1048, 1049, 100 N.Y.S.3d 569 ). Since custody determinations depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded to the trial court's credibility findings, and such findings will not be disturbed unless they lack a sound and substantial basis in the record (see Matter of Dolan v. Masterton, 121 A.D.3d 979, 980, 995 N.Y.S.2d 123 ; Matter of Chamas v. Carino, 119 A.D.3d 564, 987 N.Y.S.2d 871 ; Matter of McKoy v. Vatter, 106 A.D.3d 1090, 965 N.Y.S.2d 200 ). Here, there is no basis on the record to disturb the court's determination that the father's testimony was credible, and that it was in the best interests of the child to award him sole legal and physical custody. The court's determination has a sound and substantial basis in the record.

The Family Court was not required to accept the recommendation of the forensic evaluator that the mother be awarded custody (see Matter of Vaysman v. Conroy, 165 A.D.3d 954, 955, 85 N.Y.S.3d 536 ; Matter of Flores v. Mark, 107 A.D.3d 796, 798, 967 N.Y.S.2d 398 ). The recommendations of court-appointed experts are but one factor to be considered and are entitled to some weight. However, such opinions are not determinative and must not be permitted to usurp the judgment of the trial judge (see Matter of Pitt v. Reid, 111 A.D.3d 946, 975 N.Y.S.2d 684 ; Matter of Nikolic v. Ingrassia, 47 A.D.3d 819, 821, 850 N.Y.S.2d 539 ; Neuman v. Neuman, 19 A.D.3d 383, 384, 796 N.Y.S.2d 403 ). We agree with the court's...