Dinino v. Deima

Decision Date09 May 1991
PartiesIn the Matter of Frank DININO, Respondent, v. Dana DEIMA, Appellant. (And Two Other Related Proceedings.)
CourtNew York Supreme Court — Appellate Division

Silver, Forrester, Schisano & Lesser (Barry S. Silver, of counsel), Newburgh, for appellant.

Greenblatt & Winslow (James W. Winslow, of counsel), Newburgh, for respondent.

Before MAHONEY, P.J., and CASEY, WEISS, LEVINE and MERCURE, JJ.

WEISS, Justice.

Appeal (transferred to this court by order of the Appellate Division, Second Department) from an order of the Family Court of Orange County (Bivona, J.), entered October 5, 1989, which granted petitioner's application, in a proceeding pursuant to Family Court Act article 6, for custody of Brook Dinino.

In 1988 the Orange County Department of Social Services filed a petition alleging that Brook Dinino and Robert Deima Jr. were neglected children. On July 26, 1988, based upon the admission of respondent Dana Deima (hereinafter respondent) and her present husband, Robert Deima Sr., that alcohol-related turmoil had existed in their home, Family Court adjudged the children to be neglected and ordered that legal custody be placed in the Department with physical custody of Brook awarded to petitioner, her biological father. Custody of Robert was awarded to his paternal grandparents.

In response to various petitions for custody 1 and after lengthy hearings, Family Court awarded custody of Brook to petitioner and granted visitation rights to respondent. The court also granted the application of the Department to terminate preventive services. By stipulation made during the hearings, custody of Robert was awarded to respondent. This appeal by respondent followed.

It is well settled that the primary concern in child custody proceedings is the best interest of the child, which must be determined by the facts of each case (see, Reyes v. Ball, 162 A.D.2d 770, 557 N.Y.S.2d 683; Matter of Towne v. Towne, 154 A.D.2d 766, 767, 546 N.Y.S.2d 213; Matter of Ostrander v. Ostrander, 150 A.D.2d 944, 945, 541 N.Y.S.2d 630). This determination is usually based upon a multifaceted inquiry which includes factors such as maintaining stability in the situation in which the child lives, the relative fitness of the parents, the quality of the home environment, and the parental guidance to provide for the intellectual and emotional needs and development of the child (see, Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 447 N.Y.S.2d 893, 432 N.E.2d 765; Matter of Schwartz v. Schwartz, 144 A.D.2d 857, 534 N.Y.S.2d 583, lv. denied 74 N.Y.2d 604, 543 N.Y.S.2d 397, 541 N.E.2d 426). It is equally well settled that the evaluation of these sensitive factors is best made by the trial court which has had direct observation of, and access to, the parties and the benefit of reports prepared by, as well as the testimony elicited from, the professionals in the field (see, Matter of Ostrander v. Ostrander, supra, 150 A.D.2d at 945, 541 N.Y.S.2d 630; see also, Eschbach v. Eschbach, sup...

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  • Clark v. Dunn
    • United States
    • New York Supreme Court — Appellate Division
    • July 15, 1993
    ... ... Rozelle, 184 A.D.2d 973, 975, 585 N.Y.S.2d 593, appeal dismissed 81 N.Y.2d 784, 594 N.Y.S.2d 720, 610 N.E.2d 393; see ... also, Matter of Dinino v. Deima, 173 A.D.2d 1017, 1018, 569 N.Y.S.2d 851), petitioner's petition should not have been dismissed ...         The parties have proven ... ...
  • Mitchell v. Mitchell
    • United States
    • New York Supreme Court — Appellate Division
    • November 17, 1994
    ... ... , if placed solely with him, [209 A.D.2d 847] would be exposed to the potentially harmful results of his alcohol dependency (see, Matter of Dinino v. Deima, 173 A.D.2d ... 1017, 1018, 569 N.Y.S.2d 851). Significantly, but not surprisingly, the Law Guardian of the children recommends that the ... ...
  • Betancourt v. Boughton
    • United States
    • New York Supreme Court — Appellate Division
    • May 12, 1994
    ... ... Williams, supra, 188 A.D.2d at 907, 591 N.Y.S.2d 872; see, Matter of Dinino v. Deima, 173 A.D.2d 1017, 1018, 569 N.Y.S.2d 851). In this regard, Family Court's factual findings are traditionally accorded great deference and ... ...
  • Williams v. Williams
    • United States
    • New York Supreme Court — Appellate Division
    • December 24, 1992
    ... ... Musolino, 178 A.D.2d 413, 414, 577 N.Y.S.2d 112; Matter of Dinino v. Deima, 173 A.D.2d 1017, 1018, 569 N.Y.S.2d 851; Matter of Fringo v. Riccio, 171 A.D.2d 963, 567 N.Y.S.2d 907). To that end, "alteration of an ... ...
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