Guzman v. Pizarro

• Decision Date: 30 January 2013
• Citation: 102 A.D.3d 964,2013 N.Y. Slip Op. 00488,958 N.Y.S.2d 491
• Parties: In the Matter of Jonathan GUZMAN, respondent, v. Rosa PIZARRO, appellant. (Proceeding No. 1) In the Matter of Rosa Pizarro, appellant, v. Jonathan Guzman, respondent. (Proceeding No. 2).
• Court: New York Supreme Court — Appellate Division

102 A.D.3d 964

958 N.Y.S.2d 491

2013 N.Y. Slip Op. 00488

In the Matter of Jonathan GUZMAN, respondent,

v.Rosa PIZARRO, appellant. (Proceeding No. 1)

In the Matter of Rosa Pizarro, appellant,

v.Jonathan Guzman, respondent. (Proceeding No. 2).

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

Jan. 30, 2013.

Robert Marinelli, Brooklyn, N.Y., for appellant.

Christopher J. Robles, Brooklyn, N.Y., for respondent.

Karen P. Simmons, Brooklyn, N.Y. (Sena Kim–Reuter and Janet Neustaetter of counsel), attorney for the children.

MARK C. DILLON, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS and ROBERT J. MILLER, JJ.

In two related child custody proceedings pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Kings County (Hepner, J.), dated September 26, 2011, as, after a hearing, granted the father's petition for sole custody of the parties' child and denied her cross petition for sole custody of the child.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The Family 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 ( see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260). The proceedings here concerned an initial determination of custody. Therefore, contrary to the mother's contention, the father was not required to show a change of circumstances in order to be awarded custody of the subject child ( see Matter of Roberta GG. v. Leon HH., 99 A.D.3d 1057, 1058, 952 N.Y.S.2d 778;Matter of Thomas v. Trice, 83 A.D.3d 722, 723, 919 N.Y.S.2d 902;Matter of Smith v. Smith, 61 A.D.3d 1275, 1276, 878 N.Y.S.2d 814). The parties' informal prior arrangement was but one factor for the Family Court to consider in determining that child's best interests ( see Eschbach v. Eschbach, 56 N.Y.2d at 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260;Matter of Roberta GG. v. Leon HH., 99 A.D.3d at 1058, 952 N.Y.S.2d 778;Matter of Smith v. Smith, 61 A.D.3d at 1276, 878 N.Y.S.2d 814).

Since custody determinations depend in large part on the trial court's assessment of the character and credibility of the parties and witnesses ( see Matter of Louise E.S. v. W. Stephen S., 64 N.Y.2d 946, 947, 488 N.Y.S.2d 637, 477 N.E.2d 1091;Eschbach v. Eschbach, 56 N.Y.2d at 173–174, 451 N.Y.S.2d 658, 436 N.E.2d 1260), that court's findings are generally accorded deference and will not be disturbed unless they lack a sound and...