Ruiz v. Carie

179 A.D.3d 1069

114 N.Y.S.3d 709 (Mem)

In the Matter of Javier RUIZ, respondent,

v.Alisha CARIE, Appellant. (Proceeding No. 1)

In the Matter of Alisha Carie, Appellant,

v. Javier Ruiz, Respondent. (Proceeding No. 2)

2018–11388

Docket Nos. V–14818–15/16A, V–16510–15/16A

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

Submitted - December 9, 2019

January 29, 2020

Marion C. Perry, Brooklyn, NY, for appellant.

Yasmin Daley Duncan, Brooklyn, NY, for respondent.

Janis A. Parazzelli, Floral Park, NY, attorney for the child.

LEONARD B. AUSTIN, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.

DECISION & ORDER

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

The father and the mother, who were never married to each other, have one child together, born in 2013. The parties lived together until the mother left the apartment with the child in June 2015. Later that month, the father filed a petition for sole custody of the child, and the mother filed a petition for custody of the child. At a hearing, there was testimony that the mother relocated to Boston, had another child in October 2016, and married that child's father in December 2016. The mother had also taken the parties' child to Boston, even though the Family Court had directed that neither party was to leave the jurisdiction with the child. There was further evidence that the mother and her husband had the child baptized without the father's knowledge, and that the child was not discouraged from calling the mother's husband "dad." After the hearing, the Family Court granted the father's petition for sole custody of the child, with parental access to the mother, and denied the mother's petition for custody. 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 ). Alienation of a child from the other parent, including willful interference with his or her parental access rights, 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 ). 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 ). Here, there is no basis on the record to disturb the Family Court's determination that it was in the best interests of the parties' child to award...