Sintyago v. Fernandez

192 A.D.3d 812

139 N.Y.S.3d 903 (Mem)

In the Matter of Reginald SINTYAGO, appellant,

v.Veronica FERNANDEZ, respondent.

(Proceeding No. 1)

In the Matter of Veronica Fernandez, respondent,

v.Reginald L. Sintyago, respondent.

(Proceeding No. 2)

2020–05266

Docket Nos. V–18719–17, V–22405–18

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

Submitted - February 22, 2021

March 10, 2021

Hector L. Santiago, Kew Gardens, NY, for appellant.

Diana Kelly, Jamaica, NY, for respondent.

Sandra M. Munoz, Jamaica, NY, attorney for the child.

CHERYL E. CHAMBERS, J.P., SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Queens County (Emily M. Martinez, Ct. Atty. Ref.), dated June 30, 2020. The order, after a hearing, denied the father's petition for sole legal and physical custody of the parties' child and granted the mother's petition for sole legal and physical custody of the child.

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

The parties are the parents of one child, a daughter, born in 2011. The child lived with the mother for the first five years of her life. In late 2016, the child began living with the father. However, at that time, the parties intended this to be a temporary arrangement. On or about September 15, 2017, the father petitioned for sole legal and physical custody of the child. On or about November 9, 2018, the mother petitioned for sole legal and physical custody of the child. The Family Court, after a hearing, denied the father's petition and granted the mother's petition.

In making an initial custody determination, " ‘[t]he court's paramount concern ... is to determine, under the totality of the circumstances, what is in the best interests of the child’ " ( Matter of Gooler v. Gooler, 107 A.D.3d 712, 712, 966 N.Y.S.2d 208, quoting Matter of Julie v. Wills, 73 A.D.3d 777, 777, 899 N.Y.S.2d 669 ; see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). "In determining a child's best interests, the court must consider, among other things, (1) the parental guidance provided by the custodial parent; (2) each parent's ability to provide for the child's emotional and intellectual development; (3) each parent's ability to provide for the child financially; (4) each parent's relative fitness; and (5) the effect an award of custody to one parent might have on the child's relationship with the other parent" ( Matter of Williamson v. Williamson, 182 A.D.3d 604, 605–606, 122 N.Y.S.3d 656 ; see Ambrose v. Ambrose, 176 A.D.3d 1148, 1150, 113 N.Y.S.3d 106 ; Matter of Saylor v. Bukowski, 170 A.D.3d 862, 96 N.Y.S.3d 119 ). Since a custody determination is dependent in large part upon the assessment by the court of the witnesses' credibility and upon the character, temperament, and sincerity of the parents, deference is accorded to the court's credibility findings (see Matter of Valentin v. Valentin, 176 A.D.3d 1083, 1084, 108 N.Y.S.3d 899 ; Matter of Turcios v. Cordero, 173 A.D.3d 1048, 100 N.Y.S.3d 569 ; Matter of Carr v. Thomas, 169 A.D.3d 903, 94 N.Y.S.3d 333 ). A custody determination will not be disturbed unless it lacks a sound and substantial basis in the record (see Matter of Williamson v. Williamson, ...