Trejo v. Pavon

2022 NY Slip Op 02553

In the Matter of Elvin Trejo, respondent- appellant, v. Ingrid Pavon, appellant- respondent.

No. 2018-08382 , Docket No. V-2385-14

Supreme Court of New York, Second Department

April 20, 2022

Joseph H. Nivin, Forest Hills, NY, for appellant-respondent.

Elliot Green, Brooklyn, NY, for respondent-appellant.

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

BETSY BARROS, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6 the mother appeals, and the father cross-appeals, from an order of the Family Court, Queens County (Diane Constanzo J.), dated May 30, 2018. The order, insofar as appealed from upon a decision of the same court also dated May 30, 2018 made after a hearing, granted the father's petition for sole legal and residential custody of the parties' child and, in effect, denied the mother's petition for sole legal and residential custody of the child. The order, insofar as cross-appealed from, awarded the mother unsupervised parental access with the child. By decision and order dated June 17, 2020, this Court remitted the matter to the Family Court, Queens County, for a reconstruction hearing with respect to that portion of the proceeding conducted on May 4, 2016, related to the testimony of Isaac Benzaquen, which could not be transcribed because the tape recording was inaudible, and thereafter to report to this Court, and the appeal was held in abeyance in the interim. The Family Court has filed its report.

ORDERED that the order dated May 30, 2018, is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The father and the mother each filed a petition seeking sole legal and residential custody of their child. After a hearing that began in 2016 and continued until 2018, the Family Court, in effect, denied the mother's petition for sole legal and residential custody of the child, granted the father's petition for sole legal and residential custody of the child, and awarded the mother unsupervised parental access with the child. The mother appeals, and the father cross-appeals.

"The paramount concern in any custody or [parental access dispute] is the best interests of the child, under the totality of the circumstances" (Agulnick v Agulnick, 189 A.D.3d 956, 957 [internal quotation marks omitted]; see Eschbach v Eschbach, 56 N.Y.2d 167, 171; Matter of Rennie v Cooks, 195 A.D.3d 622; Matter of Klein v Theus 143 A.D.3d 984, 985; Matter of Julie v Wills, 73 A.D.3d 777, 777). Factors to be considered in determining those best interests include "maintaining stability for the child, the child's wishes, the home environment with each parent, each parent's past performance, relative fitness, ability... to provide for the child's overall well-being, and the willingness of each parent to foster a relationship with the other parent" (Matter of Tinger v Tinger, 108 A.D.3d 569, 569-570 [internal quotation marks omitted]; see Matter of Swinson v Brewington, 84 A.D.3d 1251, 1253). Moreover, where domestic violence is alleged and such allegations are proven by a preponderance of the evidence, the court must consider the effect of such domestic violence upon the child (see Domestic Relations Law...