Opinion
619 CAF 17–01440
08-22-2019
In the Matter of Jose M. VALENTIN, Petitioner–Appellant, v. Neyda R. MENDEZ, Respondent–Respondent.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR PETITIONER–APPELLANT. MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR RESPONDENT–RESPONDENT. CHRISTINE F. REDFIELD, ROCHESTER, ATTORNEY FOR THE CHILD.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR PETITIONER–APPELLANT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR RESPONDENT–RESPONDENT.
CHRISTINE F. REDFIELD, ROCHESTER, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner father appeals from an order modifying the parties' existing custody arrangement by awarding sole legal custody of the subject child to respondent mother and directing that the father's visitation with the child be supervised. We previously held the case, reserved decision and remitted the matter to Family Court to set forth its factual findings supporting the award of sole legal custody to the mother ( Matter of Valentin v. Mendez, 165 A.D.3d 1643, 1644, 82 N.Y.S.3d 918 [4th Dept. 2018] ). Upon remittal, the court issued a written decision in which it set forth its findings of fact, and the court again concluded that it was in the best interests of the child to award sole legal custody of the child to the mother.
Contrary to the father's contention, there is now a sound and substantial basis in the record to support the court's determination that it was in the child's best interests to award sole legal custody to the mother (see generally Matter of Christopher J.S. v. Colleen A.B., 43 A.D.3d 1350, 1350–1351, 842 N.Y.S.2d 627 [4th Dept. 2007] ). In determining whether modification of a custody arrangement is in the child's best interests, a court must consider all the "factors that could impact the best interests of the child, including the existing custody arrangement, the current home environment, the financial status of the parties, the ability of each parent to provide for the child's emotional and intellectual development and the wishes of the child" ( Matter of Marino v. Marino, 90 A.D.3d 1694, 1695, 935 N.Y.S.2d 818 [4th Dept. 2011] ; see generally Eschbach v. Eschbach, 56 N.Y.2d 167, 172–173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ). Furthermore, "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" ( Marino, 90 A.D.3d at 1695, 935 N.Y.S.2d 818 [internal quotation marks omitted] ). Here, upon reviewing the relevant factors, including the court's finding that joint custody was no longer feasible because the mother and the father have an acrimonious relationship and an inability to communicate with each other in a civil manner (see Matter of Kleinbach v. Cullerton, 151 A.D.3d 1686, 1687, 56 N.Y.S.3d 733 [4th Dept. 2017] ; Matter of Moredock v. Conti, 130 A.D.3d 1472, 1474, 12 N.Y.S.3d 711 [4th Dept. 2015] ; Matter of Gelster v. Burns, 122 A.D.3d 1294, 1296, 996 N.Y.S.2d 438 [4th Dept. 2014], lv denied 24 N.Y.3d 915, 2015 WL 733613 [2015] ), we perceive no basis upon which to set aside the court's award of sole legal custody of the child to the mother.