Carleo v. Pluchinotta, 2015-01316, Docket Nos. V-3159-13, V-3162-13.

• Decision Date: 13 April 2016
• Docket Number: 2015-01316, Docket Nos. V-3159-13, V-3162-13.
• Citation: 2016 N.Y. Slip Op. 02807,138 A.D.3d 833,30 N.Y.S.3d 194
• Parties: In the Matter of Stephen T. CARLEO, appellant, v. Jennifer PLUCHINOTTA, respondent. (Proceeding No. 1) In the Matter of Jennifer Pluchinotta, respondent, v. Stephen Carleo, appellant. (Proceeding No. 2).
• Court: New York Supreme Court — Appellate Division

138 A.D.3d 833

30 N.Y.S.3d 194

2016 N.Y. Slip Op. 02807

In the Matter of Stephen T. CARLEO, appellant,

v.Jennifer PLUCHINOTTA, respondent. (Proceeding No. 1)

In the Matter of Jennifer Pluchinotta, respondent,

v.Stephen Carleo, appellant. (Proceeding No. 2).

2015-01316, Docket Nos. V-3159-13, V-3162-13.

Supreme Court, Appellate Division, Second Department, New York.

April 13, 2016.

Anthony A. Capetola, Williston Park, N.Y. (Robert P. Johnson of counsel), for appellant.

Noel Munier, Woodbury, N.Y., for respondent.

Lisa Daniels, East Rockaway, N.Y., attorney for the child.

RUTH C. BALKIN, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, and FRANCESCA E. CONNOLLY, JJ.

Appeal from an order of the Family Court, Nassau County (Ellen R. Greenberg, J.), dated February 11, 2015. The order, after a hearing, inter alia, in effect, granted the mother's petition for sole custody of the subject child and denied the father's petition for sole custody of the subject child.

ORDERED that the order is affirmed, without costs or disbursements.

The mother and the father each filed petitions for sole custody of their child. The Family Court, after a hearing, awarded the mother sole legal and residential custody of the child. The father 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’ ” (Matter of Gooler v. Gooler, 107 A.D.3d 712, 712, 966 N.Y.S.2d 208

, quoting Matter of

Julie v. Wills, 73 A.D.3d 777, 777, 899 N.Y.S.2d 669 ; see

Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). In determining an initial petition for custody, the totality of the circumstances includes, but is not limited to, “(1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent's relative fitness, including his or her ability to guide the child, provide for the child's overall well being, and foster the child's relationship with the noncustodial parent; and (5) the child's desires” (Matter of

Supangkat v. Torres, 101 A.D.3d 889, 890, 954 N.Y.S.2d 915 ). “Since any custody determination depends to a very great extent upon the hearing court's assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties, its findings are generally accorded great respect and will not be disturbed unless they lack a sound and substantial basis in the record, or are contrary to the weight of the evidence” (Matter of

Chabotte v. Faella, 77 A.D.3d 749, 749–750, 908 N.Y.S.2d 607 [internal quotation marks omitted]; see Matter of

Diaz v. Diaz, 97 A.D.3d 747, 747, 948 N.Y.S.2d 413 ; Trinagel v. Boyar, 70 A.D.3d 816, 816, 893 N.Y.S.2d 636 ).

Although various considerations in this case may have supported an award of custody to either parent, the Family Court properly gave great weight to the evidence that the father, assisted by the paternal grandmother, engaged in a concerted effort to interfere with, and undermine, the child's relationship with the mother. As the Family Court pointed out, a custodial parent's interference with a child's relationship with the noncustodial parent is “so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as custodial parent” (Matter of Chebuske v. Burnhard–Vogt, 284 A.D.2d 456, 458, 726 N.Y.S.2d 697

; see Matter of

Diaz v. Diaz, 97 A.D.3d at 747, 948 N.Y.S.2d 413 ; Matter of

Miosky v. Miosky, 33 A.D.3d 1163, 1167, 823 N.Y.S.2d 269 ; Vernon v. Vernon, 296 A.D.2d 186, 192, 746 N.Y.S.2d 284, affd. 100 N.Y.2d 960, 768 N.Y.S.2d 719, 800 N.E.2d 1085 ; Matter of

Glenn v. Glenn, 262 A.D.2d 885, 887, 692 N.Y.S.2d 520 ; Daghir v. Daghir, 82 A.D.2d 191, 194, 441 N.Y.S.2d 494, affd. 56 N.Y.2d 938, 453 N.Y.S.2d 609, 439 N.E.2d 324 ; ...