Opinion
2017–08688 Docket Nos. V–17628–15, V–17751–15
09-12-2018
In the Matter of Katarina G. TUMANOVA, appellant, v. Ahmad ALI, respondent. (Proceeding No. 1) In the Matter of Ahmad Ali, respondent, v. Katarina G. Tumanova, appellant. (Proceeding No. 2)
Peter Wilner, Jamaica, NY, for appellant. Adewole Agbayewa, Fresh Meadows, NY, for respondent. Olga J. Rodriguez, Forest Hills, NY, attorney for the child.
Peter Wilner, Jamaica, NY, for appellant.
Adewole Agbayewa, Fresh Meadows, NY, for respondent.
Olga J. Rodriguez, Forest Hills, NY, attorney for the child.
REINALDO E. RIVERA, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDER
In related proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Queens County (Ashley Black, Ct. Atty. Ref.), dated August 2, 2017. The order, insofar as appealed from, after a hearing, dismissed the mother's petition for sole custody of the parties' child, and granted the father's cross petition for sole custody of the parties' child.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
The mother and the father, along with the paternal grandmother and a paternal aunt, lived together with the parties' child until June 2014, when the mother left the home. The child continued to reside with the father, the paternal grandmother, and the paternal aunt for another year. The child was enrolled in kindergarten at a school near the father's home, and the mother visited with the child during the week and overnights on the weekends. Sometime in late August or early September 2015, the mother took the child for a visit and never returned him to the father's home. At the time the mother took the child, she did not inform the father or the child that she intended to keep the child permanently. The mother refused to tell the father where she and the child were residing or where the child was attending school.
The mother filed a petition for sole custody of the child, and the father filed a cross petition for sole custody. At a hearing on the petitions, the mother testified that she had been the child's primary caregiver. The father testified that the parties had shared caregiving responsibilities for the child while they lived together and that he had taken care of the child after the mother left. The Family Court granted the father's cross petition for sole custody, and dismissed the mother's petition for sole custody. The mother appeals.
"When determining custody cases, the primary concern is the best interests of the child" ( McDonald v. McDonald , 122 A.D.3d 911, 911, 998 N.Y.S.2d 389 [internal quotation marks omitted]; 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 existence or absence of any one factor in determining custody cannot be determinative on appellate review since the court is to consider the totality of the circumstances (see Eschbach v. Eschbach , 56 N.Y.2d at 174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of McLennan v. Gordon , 122 A.D.3d 742, 996 N.Y.S.2d 339 ). "As custody determinations turn in large part on assessments of the credibility, character, temperament, and sincerity of the parties, the Family Court's determination [following a complete evidentiary hearing] 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, 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 ; Matter of Tejada v. Tejada , 126 A.D.3d 985, 6 N.Y.S.3d 122 ).
The Family Court's determination that an award of custody to the father was in the child's best interests has a sound and substantial basis in the record and, thus, will not be disturbed (see Matter of Garcia v. Perez , 48 A.D.3d 812, 853 N.Y.S.2d 141 ). Contrary to the mother's contention, the court carefully considered all the relevant factors in making its determination (see Matter of Craig S. v. Emily S. , 149 A.D.3d 751, 51 N.Y.S.3d 152 ). Further, since the record demonstrates that the parties are unable to cooperate on matters concerning the child, joint custody was not appropriate under the circumstances of this case (see Matter of Wright v. Kaura , 106 A.D.3d 751, 964 N.Y.S.2d 573 ; Matter of Edwards v. Rothschild , 60 A.D.3d 675, 875 N.Y.S.2d 155 ).
RIVERA, J.P., MILLER, MALTESE and LASALLE, JJ., concur.