Opinion
2014-11-13
In re RENA M., Petitioner–Respondent, v. DERRICK A., Respondent–Appellant.
Andrew J. Baer, New York, for appellant. Law Offices of Randall S. Carmel, Syosset (Randall S. Carmel of counsel), for respondent.
Andrew J. Baer, New York, for appellant. Law Offices of Randall S. Carmel, Syosset (Randall S. Carmel of counsel), for respondent.
MAZZARELLI, J.P., SWEENY, MOSKOWITZ, RICHTER, FEINMAN, JJ.
Order, Family Court, New York County (Diane Costanzo, Referee), entered on or about April 15, 2013, which awarded petitioner sole legal and physical custody of the parties' child, unanimously affirmed, without costs.
The determination that the child's best interests require that petitioner be awarded sole legal and physical custody of him has a sound and substantial basis in the record ( see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ). With the exception of the period between June 2011 and February 2012, during which petitioner worked and was the sole financial support of the family, she has maintained physical custody of the child since he was born. Moreover, since February 2012, petitioner has cared for the child without any support, financial, emotional or otherwise, from respondent, who has not even visited with the child since that time, despite an order directing supervised visitation. The record establishes that the child has been well cared for by petitioner, who has a stable job and home environment and has provided for the child's needs ( see Matter of Battista v. Fasano, 41 A.D.3d 712, 713, 838 N.Y.S.2d 178 [2d Dept.2007], lv. denied9 N.Y.3d 818, 852 N.Y.S.2d 14, 881 N.E.2d 1201 [2008] ).
The record does not support respondent's contention that leaving petitioner's home and moving to California to live with respondent—who the record shows is emotionally, physically and financially challenged—would be in the child's best interests ( see e.g. Matter of Oscarson v. Maresca, 232 A.D.2d 732, 648 N.Y.S.2d 724 [3d Dept.1996] ). Indeed, such a move would be detrimental to the child.
Nor does the record support respondent's contention that the court erred in crediting petitioner's testimony and discrediting his testimony ( see Eschbach, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Matter of Mildred S.G. v. Mark G., 62 A.D.3d 460, 879 N.Y.S.2d 402 [1st Dept.2009] ). Petitioner's testimony included accounts of domestic violence by respondent against her, resulting in the issuance of two orders of protection, and the court properly considered this history of domestic violence in making its custody determination ( seeDomestic Relations Law § 240[1][a]; Matter of Wissink v. Wissink, 301 A.D.2d 36, 40, 749 N.Y.S.2d 550 [2d Dept.2002] ).
Respondent's argument that the court abused its discretion in failing to sua sponte appoint an attorney for the child is without merit ( see Matter of Keen v. Stephens, 114 A.D.3d 1029, 981 N.Y.S.2d 174 [3d Dept.2014] ).
The record does not support respondent's contention that he was denied a fair trial or the right to present his case by the trial court's intervention in the questioning of witnesses or by any alleged bias on the court's part ( see Messinger v. Mount Sinai Med. Ctr., 15 A.D.3d 189, 789 N.Y.S.2d 132 [1st Dept.2005], lv. dismissed5 N.Y.3d 820, 803 N.Y.S.2d 27, 836 N.E.2d 1150 [2005] ).