Gribeluk v. Gribeluk

• Decision Date: 13 August 2014
• Citation: 991 N.Y.S.2d 117,120 A.D.3d 579,2014 N.Y. Slip Op. 05790
• Parties: In the Matter of Guillermo GRIBELUK, respondent, v. Kelly GRIBELUK, appellant.
• Court: New York Supreme Court — Appellate Division

120 A.D.3d 579

991 N.Y.S.2d 117

2014 N.Y. Slip Op. 05790

In the Matter of Guillermo GRIBELUK, respondent,

v.Kelly GRIBELUK, appellant.

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

Aug. 13, 2014.

Fried, Frank, Harris, Shriver & Jacobson, LLP, New York, N.Y. (Janice Mac Avoy of counsel), for appellant.

Eric Ole Thorsen, New City, N.Y. (Ilene Kim Graff of counsel), for respondent.

Veronica J. Young, New City, N.Y., attorney for the children.

THOMAS A. DICKERSON, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and SYLVIA HINDS–RADIX, JJ.

In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Rockland County (Eisenpress, J.), entered April 23, 2013, which, after a hearing, denied her petition for custody of the parties' children, and granted the father's petition for custody of the parties' children, with certain visitation to her.

ORDERED that the order is affirmed, with costs.

When making a decision in custody matters, the primary concern is the best interests of the child ( seeDomestic Relations Law § 70; Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 93–95, 447 N.Y.S.2d 893, 432 N.E.2d 765). Custody determinations depend to a great extent upon the court's assessment of the credibility of the witnesses, as well as the parties' character, temperament, and sincerity ( see Matter of Venette v. Rhodes, 301 A.D.2d 608, 754 N.Y.S.2d 36). These determinations are entitled to great deference and should not be disturbed unless they lack a sound and substantial basis in the record ( see Eschbach v. Eschbach, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Matter of Brass v. Otero, 40 A.D.3d 752, 835 N.Y.S.2d 675; Matter of Shehata v. Shehata, 31 A.D.3d 773, 774, 818 N.Y.S.2d 623; Kaplan v. Kaplan, 21 A.D.3d 993, 994, 801 N.Y.S.2d 391).

The courts may consider religion as one of the factors in determining the best interests of a child, but religion alone may not be the determinative factor ( see Matter of Gago v. Acevedo, 214 A.D.2d 565, 566, 625 N.Y.S.2d 250; Aldous v. Aldous, 99 A.D.2d 197, 473 N.Y.S.2d 60). New York courts will consider religion in a custody dispute when a child has developed actual religious ties to a specific religion and those needs can be served better by one parent than the other ( see Aldous v. Aldous, 99 A.D.2d at 199, 473 N.Y.S.2d 60; Spring v. Glawon, 89 A.D.2d 980, 454 N.Y.S.2d 140).

Here, contrary to the mother's contentions, the Family Court did not rely solely on religion and the mother's decision to leave the Hasidic Jewish community in making the determination to award the father custody of the parties' children. The Family Court expressly stated that it passed no judgment on either parent's religious beliefs and practices. The children's need for stability, and the potential impact of uprooting them from the only lifestyle which they have known, are important factors in making a custody determination ( see Matter of Larkin v. White, 64 A.D.3d 707, 709, 884 N.Y.S.2d 90).

The Family Court also found the mother's repeated allegations of sexual abuse of the children by the father to...