Opinion
2018–02948 Docket Nos. V–11714–13, V–11739–13
03-13-2019
In the Matter of Erida DANTE, Appellant, v. John DANTE, Respondent. (Proceeding No. 1) In the Matter of John Dante, Respondent, v. Erida Dante, Appellant. (Proceeding No. 2)
Steven P. Forbes, Jamaica, NY, for appellant. Marion C. Perry, Brooklyn, NY, attorney for the child.
Steven P. Forbes, Jamaica, NY, for appellant.
Marion C. Perry, Brooklyn, NY, attorney for the child.
CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, BETSY BARROS, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
The parties, who were married in 2002, have one child, born in 2006. The parties separated in April 2013. That same month, the father filed a petition for sole custody of the parties' child and, in effect, for permission to relocate with the child to New Jersey, where the child now resides, and the mother cross-petitioned for sole custody of the child. Following a hearing, the Family Court, inter alia, granted the father's petition and denied the mother's cross petition. The mother appeals.
The court's paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child (see Eschbach v. Eschbach , 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Julie v. Wills , 73 A.D.3d 777, 899 N.Y.S.2d 669 ). "Factors to be considered in determining 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 Elliott v. Felder , 69 A.D.3d 623, 623, 892 N.Y.S.2d 491 ; see Eschbach v. Eschbach , 56 N.Y.2d at 171–172, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Supangkat v. Torres , 101 A.D.3d 889, 890, 954 N.Y.S.2d 915 ).
Although the father's relocation to New Jersey precipitated the commencement of these proceedings, this matter concerns an initial custody determination, and, therefore, the strict application of the factors relevant to a relocation petition (see Matter of Tropea v. Tropea , 87 N.Y.2d 727, 642 N.Y.S.2d 575, 665 N.E.2d 145 ) is not required (see Matter of Williams v. Bryson , 167 A.D.3d 1021, 91 N.Y.S.3d 169 ; Matter of Alvarado v. Cordova , 158 A.D.3d 794, 71 N.Y.S.3d 566 ; Matter of McDonald v. Thomas , 154 A.D.3d 763, 764, 62 N.Y.S.3d 148 ). The father's relocation was but one factor among many for the Family Court to consider in determining what was in the best interests of the child (see Matter of Alvarado v. Cordova , 158 A.D.3d at 794–795, 71 N.Y.S.3d 566 ; Matter of Wood v. Rago , 135 A.D.3d 949, 950, 22 N.Y.S.3d 913 ).
Contrary to the mother's contention, the Family Court's determination to award the father sole custody of the child, with permission to relocate to New Jersey, has a sound and substantial basis in the record, based upon the totality of the evidence. The record reflects that the father is in the best position to provide for the child's emotional development (see Matter of Yu Chao Tan v. Hong Shan Kuang , 136 A.D.3d 933, 935, 25 N.Y.S.3d 339 ). Further, the court's determination was supported by the recommendation of the court-appointed forensic evaluator, which, while not determinative, is entitled to some weight (see E.V. v. R.V. , 165 A.D.3d 736, 738, 85 N.Y.S.3d 84 ).
CHAMBERS, J.P., ROMAN, BARROS and CHRISTOPHER, JJ., concur.