Opinion
11-18-2015
In the Matter of Diahanna KEYES, appellant, v. Kayle WATSON, respondent.
McCarthy Fingar LLP, White Plains, N.Y. (Sondra M. Miller and Dolores Gebhardt of counsel), for appellant. Kantrowitz, Goldhamer & Graifman, P.C., Chestnut Ridge, N.Y. (Randy J. Perlmutter of counsel), for respondent. Kenneth Lyle Bunting, White Plains, N.Y., attorney for the children.
McCarthy Fingar LLP, White Plains, N.Y. (Sondra M. Miller and Dolores Gebhardt of counsel), for appellant.
Kantrowitz, Goldhamer & Graifman, P.C., Chestnut Ridge, N.Y. (Randy J. Perlmutter of counsel), for respondent.
Kenneth Lyle Bunting, White Plains, N.Y., attorney for the children.
REINALDO E. RIVERA, J.P., MARK C. DILLON, CHERYL E. CHAMBERS, and HECTOR D. LaSALLE, JJ.
Appeal from an order of the Family Court, Westchester County (David Klein, J.), dated December 26, 2014. The order, insofar as appealed from, after a hearing, inter alia, denied the mother's petition to modify a prior order of custody dated December 20, 2007, so as to award her sole legal and physical custody of the parties' children and granted the father's cross petition to modify the prior order of custody so as to award him sole legal and physical custody.
ORDERED that the order dated December 26, 2014, is affirmed insofar as appealed from, with costs."In adjudicating custody and visitation rights, the most important factor to be considered is the best interests of the child" (Matter of Jules v. Corriette, 76 A.D.3d 1016, 1017, 908 N.Y.S.2d 89 ; see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of McQueen v. Legette, 125 A.D.3d 863, 1 N.Y.S.3d 845 ; Matter of McKoy v. Vatter, 106 A.D.3d 1090, 965 N.Y.S.2d 200 ; Matter of Roldan v. Nieves, 76 A.D.3d 634, 905 N.Y.S.2d 772 ). "[O]ne of the primary responsibilities of a custodial parent is to assure meaningful contact between the children and the noncustodial parent, and the willingness of a parent to assure such meaningful contact between the children and the other parent is a factor to be considered in making a custody determination" (matter of vasquez V. ORTIZ, 77 a.d.3d 962, 909 N.Y.S.2d 155 ; see Matter of Dezil v. Garlick, 114 A.D.3d 773, 773–774, 980 N.Y.S.2d 506 ; Matter of Khan–Soleil v. Rashad, 111 A.D.3d 728, 729, 978 N.Y.S.2d 226 ; Matter of Honeywell v. Honeywell, 39 A.D.3d 857, 858, 835 N.Y.S.2d 327 ). "As custody determinations turn in large part on assessments of the credibility, character, temperament, and sincerity of the parties, the Family Court's determination should not be disturbed unless it lacks a sound and substantial basis in the record" (Matter of Tori v. Tori, 103 A.D.3d 654, 655, 958 N.Y.S.2d 510 ; see Eschbach v. Eschbach, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Stones v. Vandenberge, 127 A.D.3d 1213, 1215, 7 N.Y.S.3d 535 ; Matter of McFarlane v. Newton, 127 A.D.3d 1199, 1200, 5 N.Y.S.3d 910 ; Matter of McKoy v. Vatter, 106 A.D.3d at 1090, 965 N.Y.S.2d 200 ).
Here, the primary issue with respect to the children's best interests was which parent was better able to avoid conflict between the parties and foster the children's relationship with the noncustodial parent. Contrary to the mother's contention, this question did not present " 'sharp factual disputes' " upon which the report of a court-appointed forensic examiner could have shed light (Matter of Brown v. Simon, 123 A.D.3d 1120, 1122, 1 N.Y.S.3d 238, quoting Matter of Shanika M. v. Stephanie G., 108 A.D.3d 717, 718, 968 N.Y.S.2d 894 ). Accordingly, the Family Court providently exercised its discretion in denying the mother's request for the appointment of a forensic evaluator to produce an updated report in this case (see Matter of Linn v. Wilson, 68 A.D.3d 1767, 1767–1768, 891 N.Y.S.2d 583 ; Matter of Armstrong v. Heilker, 47 A.D.3d 1104, 1105, 850 N.Y.S.2d 673 ; Matter of Sassower–Berlin v. Berlin, 31 A.D.3d 771, 772, 820 N.Y.S.2d 602 ; Matter of Salamone–Finchum v. McDevitt, 28 A.D.3d 670, 671, 816 N.Y.S.2d 105 ). Furthermore, the evidence presented at the hearing supported the court's conclusion that the father was willing and able to "assure meaningful contact between the children and the noncustodial parent" and that the mother was not willing to do so (Matter of Vasquez v. Ortiz, 77 A.D.3d at 962, 909 N.Y.S.2d 155 ; see Matter of Dezil v. Garlick, 114 A.D.3d at 773–774, 980 N.Y.S.2d 506 ; Matter of Khan–Soleil v. Rashad, 111 A.D.3d at 729, 978 N.Y.S.2d 226 ;
Matter of Honeywell v. Honeywell, 39 A.D.3d at 858, 835 N.Y.S.2d 327 ). Accordingly, the court's determination that the children's interests would be best served by awarding the father sole custody, while maintaining liberal parenting time for the mother, had a sound and substantial basis in the record.
By failing to contest it in her main brief on the appeal, the mother has abandoned her challenge to the Family Court's award of attorneys' fees to the father, despite her attempt to raise the issue in her reply brief (see Shaw v. Bluepers Family Billiards, 94 A.D.3d 858, 860, 941 N.Y.S.2d 691 ; Kane v. Triborough Bridge & Tunnel Auth., 8 A.D.3d 239, 242, 778 N.Y.S.2d 52 ; Khalona v. New York City Tr. Auth., 215 A.D.2d 630, 631, 628 N.Y.S.2d 306 ).
The mother's remaining contention is without merit (see Family Ct. Act § 652[b] ).