Opinion
2013-10972
03-04-2015
S.L. (Anonymous), appellant, v. J.R. (Anonymous), respondent.
Nicholas Barone, White Plains, N.Y. (Harold Burke of counsel), for appellant. Joseph R. Miano, White Plains, N.Y., for respondent. John A. Pappalardo, White Plains, N.Y., attorney for the children.
Nicholas Barone, White Plains, N.Y. (Harold Burke of counsel), for appellant.
Joseph R. Miano, White Plains, N.Y., for respondent.
John A. Pappalardo, White Plains, N.Y., attorney for the children.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, SANDRA L. SGROI, and SYLVIA O. HINDS–RADIX, JJ.
Opinion In an action for a divorce and ancillary relief, the plaintiff appeals, by permission, from an order of the Supreme Court, Westchester County (Capeci, J.), entered October 10, 2013, which, without a hearing, granted the defendant's motion for sole legal and physical custody of the parties' two children.
ORDERED that the order is affirmed, with costs.
An award of custody must be based upon the best interests of the child, and neither parent has a prima facie right to custody of the child (see Domestic Relations Law § 70 ; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 93, 447 N.Y.S.2d 893, 432 N.E.2d 765 ; Matter of Zaratzian v. Abadir, 105 A.D.3d 1054, 963 N.Y.S.2d 706 ). Although a custody determination generally may only be made following a full and comprehensive evidentiary hearing (see Obey v. Degling, 37 N.Y.2d 768, 769–770, 375 N.Y.S.2d 91, 337 N.E.2d 601 ; Matter of Savoca v. Bellofatto, 104 A.D.3d 695, 696, 960 N.Y.S.2d 212 ; Matter of Peek v. Peek, 79 A.D.3d 753, 913 N.Y.S.2d 281 ; Matter of Nalty v. Kong, 59 A.D.3d 723, 874 N.Y.S.2d 522 ), no hearing is necessary where, as here, “the court possesses adequate relevant information to enable it to make an informed and provident determination as to the child's best interest” (Matter of Hom v. Zullo, 6 A.D.3d 536, 536, 775 N.Y.S.2d 66 ; see Lazo v. Cherrez, 121 A.D.3d 1002, 995 N.Y.S.2d 120 ; Matter of Zaratzian v. Abadir, 105 A.D.3d at 1054, 963 N.Y.S.2d 706 ; Matter of Schyberg v. Peterson, 105 A.D.3d 857, 962 N.Y.S.2d 671 ).
Significantly, the parties' affidavits and the report prepared by the court-appointed forensic evaluator demonstrate that the plaintiff admits the defendant's allegations regarding her emotionally destructive and sometimes violent behavior toward him and the parties' two children. Moreover, the forensic evaluator, who interviewed the parties and the subject children, concluded that the defendant was the more stable parent, and that the defendant was able to make sound parenting decisions for the children. Additionally, the attorney for the children supported the award of custody to the defendant.
The plaintiff's remaining contentions are without merit. Thus, a sound and substantial basis in the record exists to support the Supreme Court's determination that it was in the best interests of the subject children to award the defendant sole legal and physical custody (see Eschbach v. Eschbach, 56 N.Y.2d 167, 172–173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Graziani C.A. [Lisa A.], 117 A.D.3d 729, 985 N.Y.S.2d 149 ; Matter of DeViteri v. Saldana, 95 A.D.3d 1221, 1222, 944 N.Y.S.2d 635 ).