Opinion
1153 CAF 20-01177
01-28-2022
In the Matter of Anthony BURNETT, Sr., Petitioner-Respondent, v. Gabrielle SMITH, Respondent-Appellant.
PAUL B. WATKINS, FAIRPORT, FOR RESPONDENT-APPELLANT. CHARU NARANG, BROCKPORT, FOR PETITIONER-RESPONDENT. ELIZABETH deV. MOELLER, ROCHESTER, ATTORNEY FOR THE CHILDREN.
PAUL B. WATKINS, FAIRPORT, FOR RESPONDENT-APPELLANT.
CHARU NARANG, BROCKPORT, FOR PETITIONER-RESPONDENT.
ELIZABETH deV. MOELLER, ROCHESTER, ATTORNEY FOR THE CHILDREN.
PRESENT: WHALEN, P.J., SMITH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 6, respondent mother appeals from an order that, inter alia, awarded petitioner father sole custody and primary physical residence of the two subject children, with visitation to the mother. We affirm.
Generally, "a court's determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record" ( Matter of Krug v. Krug , 55 A.D.3d 1373, 1374, 865 N.Y.S.2d 450 [4th Dept. 2008] [internal quotation marks omitted]; see Matter of Crill v. Crill , 181 A.D.3d 1199, 1200, 117 N.Y.S.3d 911 [4th Dept. 2020] ). Here, we reject the mother's contention that Family Court's determination is not supported by a sound and substantial basis in the record. To the contrary, after reviewing the appropriate factors (see generally Fox v. Fox , 177 A.D.2d 209, 210-211, 582 N.Y.S.2d 863 [4th Dept. 1992] ), we conclude that the totality of the circumstances supports the court's determination that it is in the best interests of the subject children to award sole custody and primary physical residence to the father (see Eschbach v. Eschbach , 56 N.Y.2d 167, 174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ; Matter of Marino v. Marino , 90 A.D.3d 1694, 1695, 935 N.Y.S.2d 818 [4th Dept. 2011] ). With respect to the mother's specific contention that the court erred by separating the subject children from the mother's other children, it is well settled that "the presence of half siblings of the child[ren] in [the mother's] home is not dispositive, although it is a factor to be considered in making custody determinations" ( Matter of Slade v. Hosack , 77 A.D.3d 1409, 1409, 908 N.Y.S.2d 784 [4th Dept. 2010] ; see generally Eschbach , 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). Here, the record reflects that the subject children were previously separated from their half siblings when the mother assaulted two of those siblings, which led to all of the mother's children being initially placed in foster care, and the two subject children being placed with the father thereafter. Based on those factors and the other evidence in the record, we conclude that the court's determination that it is in the best interests of the subject children that they be separated from their half siblings is supported by a sound and substantial basis in the record (see Matter of Curry v. Reese , 145 A.D.3d 1475, 1476, 44 N.Y.S.3d 279 [4th Dept. 2016] ; Matter of Luke v. Luke , 90 A.D.3d 1179, 1182, 933 N.Y.S.2d 782 [3d Dept. 2011] ; see also Matter of Colleen F. v. Frank K. , 49 A.D.3d 1228, 1230, 854 N.Y.S.2d 257 [4th Dept. 2008] ).