Opinion
2013-00959
11-26-2014
Brian McDONALD, respondent, v. Tanya McDONALD, appellant.
Neal D. Futerfas, White Plains, N.Y., for appellant. Brian McDonald, Mount Vernon, N.Y., respondent pro se. Kenneth Lyle Bunting, White Plains, N.Y., attorney for the child.
Neal D. Futerfas, White Plains, N.Y., for appellant.Brian McDonald, Mount Vernon, N.Y., respondent pro se.
Kenneth Lyle Bunting, White Plains, N.Y., attorney for the child.
MARK C. DILLON, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.
Opinion In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Westchester County (Sweeny, Jr., J.), dated October 26, 2012, as, after a nonjury trial, awarded physical custody of the parties' child to the plaintiff.
ORDERED that the judgment is affirmed insofar as appealed from, without costs or disbursements.
“When determining custody cases, the primary concern is the best interests of the child” (Salvatore v. Salvatore, 68 A.D.3d 966, 893 N.Y.S.2d 63 ; see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Islam v. Lee, 115 A.D.3d 952, 953, 982 N.Y.S.2d 772 ). “The factors to be considered in determining the custody arrangement that is in the child's best interests include the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent” (Matter of Islam v. Lee, 115 A.D.3d at 953, 982 N.Y.S.2d 772 [internal quotation marks omitted]; see Eschbach v. Eschbach, 56 N.Y.2d at 171–173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Miguel R. v. Maria N., 104 A.D.3d 771, 772, 960 N.Y.S.2d 489 ). “As custody determinations turn in large part on assessments of the credibility, character, temperament, and sincerity of the parties, the [hearing court's] determination should not be disturbed unless it lacks a sound and substantial basis in the record” (Matter of Jurado v. Jurado, 119 A.D.3d 796, 989 N.Y.S.2d 316 [internal quotation marks omitted]; see Eschbach v. Eschbach, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Iacono v. Iacono, 117 A.D.3d 988, 986 N.Y.S.2d 248 ). The Supreme Court's determination that it was in the best interests of the child to award physical custody of her to the father has a sound and substantial basis in the record and, accordingly, we decline to disturb it (see Iacono v. Iacono, 117 A.D.3d at 988–989, 986 N.Y.S.2d 248 ).
Contrary to the mother's contention, the existence of an interim order awarding her physical custody, which was made without a hearing, did not require the court to engage in a change-of-circumstances analysis in determining the permanent award after a hearing had been held. “The award of temporary custody to a parent before a hearing is conducted is only one factor to be considered in awarding permanent custody; the permanent award made after a hearing is treated as an initial custody determination, and [the court] is not required to engage in a change-of-circumstances analysis before awarding custody to the other parent” (Matter of Holohan v. Levens, 106 A.D.3d 1003, 1004, 965 N.Y.S.2d 376 [internal quotation marks omitted]; see Matter of Williams v. Dowgiallo, 90 A.D.3d 942, 935 N.Y.S.2d 123 ; Matter of Quinones v. Gonzalez, 79 A.D.3d 893, 894, 912 N.Y.S.2d 432 ).
Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in determining the issue of custody without a forensic evaluation of the parties and child (see Matter of Solovay v. Solovay, 94 A.D.3d 898, 900, 941 N.Y.S.2d 712 ; Matter of Martin v. Martin, 15 A.D.3d 662, 789 N.Y.S.2d 914 ; Kaplansky v. Kaplansky, 212 A.D.2d 667, 668, 622 N.Y.S.2d 766 ; Guevara v. Guevara, 132 A.D.2d 596, 517 N.Y.S.2d 433 ). There was no credible evidence presented at the hearing that warranted a forensic evaluation (see Matter of Solovay v. Solovay, 94 A.D.3d at 900, 941 N.Y.S.2d 712 ).