Opinion
13112.
10-07-2014
In re DEAN W., Petitioner–Appellant, v. Karina McK., Respondent–Respondent.
Leslie S. Lowenstein, Woodmere, for appellant. The Bronx Defenders, Bronx (Patricia Moon of counsel), for respondent. Karen P. Simmons, The Children's Law Center, Brooklyn (Sarah McCarthy of counsel), attorney for the child.
Leslie S. Lowenstein, Woodmere, for appellant.
The Bronx Defenders, Bronx (Patricia Moon of counsel), for respondent.Karen P. Simmons, The Children's Law Center, Brooklyn (Sarah McCarthy of counsel), attorney for the child.
SWEENY, J.P., RENWICK, ANDRIAS, MOSKOWITZ, MANZANET–DANIELS, JJ.
Opinion Order, Supreme Court, Bronx County (Diane Kiesel, J.), entered on or about March 18, 2013, which, inter alia, modified a joint custody order and awarded sole custody of the parties' child to respondent mother, unanimously affirmed, without costs.
The hearing evidence showing that since shortly after the entry in June 2009 of a joint custody order the parties have been unable to get along, frequently engaging in intense and even violent altercations, at times in the presence of their child, establishes that there has been a change of circumstances and modification of the joint custody order is required (see Matter of Santiago v. Halbal, 88 A.D.3d 616, 932 N.Y.S.2d 32 [1st Dept.2011] ).
The determination that it is in the best interests of the child that sole custody be awarded to respondent has a sound and substantial basis in the record (see Lubit v. Lubit, 65 A.D.3d 954, 955, 885 N.Y.S.2d 492 [1st Dept.2009], lv. denied 13 N.Y.3d 716, 2010 WL 118203 [2010], cert. denied 560 U.S. 940, 130 S.Ct. 3362, 176 L.Ed.2d 1247 [2010] ). The evidence demonstrates that respondent has long been almost solely responsible for the child's education and healthcare and that the child is healthy and doing very well in school. Respondent is also much more capable than petitioner of meeting the child's financial needs.
Petitioner contends that the court erred in rejecting the forensic psychologist's findings that respondent was an angry person and that he was the better parent. However, the court was not required to accept the expert's findings (Edgerly v. Moore, 232 A.D.2d 214, 647 N.Y.S.2d 773 [1st Dept.1996] ). While the expert based his findings on a few hours of observation of the parties, the court has had extensive contact with the parties in various proceedings over the last several years. Moreover, the court found respondent's testimony that both parties were at fault in the altercations more credible than petitioner's testimony that respondent always attacked him without cause or provocation, and these credibility determinations are entitled to great deference (Matter of Mildred S.G. v. Mark G., 62 A.D.3d 460, 879 N.Y.S.2d 402 [1st Dept.2009] ).