Rosiana C. v. Pierre S.

• Decision Date: 01 March 1993
• Citation: 191 A.D.2d 432,594 N.Y.S.2d 316
• Parties: In the Matter of ROSIANA C. (Anonymous), Appellant, v. PIERRE S. (Anonymous), Respondent.
• Court: New York Supreme Court — Appellate Division

Page 316

594 N.Y.S.2d 316

191 A.D.2d 432

In the Matter of ROSIANA C. (Anonymous), Appellant, v. PIERRE S. (Anonymous), Respondent.

Supreme Court, Appellate Division Second Department.

March 1, 1993.

Donald T. Rodda, New York City, for appellant.

Before THOMPSON, J.P., and ROSENBLATT, EIBER and MILLER, JJ.

MEMORANDUM BY THE COURT.

In a custody proceeding pursuant to Family Court Act article 6, the petitioner mother appeals from an order of the Family Court, Kings County (Nason, J.), dated April 6, 1990, which awarded permanent custody of the parties' daughter to the father.

ORDERED that the order is reversed, without costs or disbursements, and the matter is remitted to the Family Court Kings County, for the appointment of a law guardian for the parties' child and for a new hearing and determination with respect to the custody of the child in accordance herewith; in the interim the child shall remain with the father.

The parties' daughter, Patricia, was born in 1985. The mother and father, who had never married, separated in 1989. After the separation, the mother rented an apartment where she and Patricia resided together with the mother's children from a previous marriage. Approximately four months later, the father removed the child from the mother's custody without her permission. At the time the father took the child, there was no order of filiation establishing his paternity.

The mother then commenced a proceeding in the Family Court, Kings County, seeking the return of the child. A hearing was ultimately conducted, after which the court awarded custody to the father--over the recommendation of the Child Welfare Bureau caseworker--upon the sole ground that the accommodations which the mother could offer Patricia were too crowded and less desirable than those available at the father's apartment. We reverse.

The paramount consideration for the court in rendering a custody ruling is the best interests of the child (see, Domestic Relations Law §§ 70, 240; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 447 N.Y.S.2d 893, 432 N.E.2d 765; Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Matter of Krebsbach v. Gallagher, 181 A.D.2d 363, 587 N.Y.S.2d 346). Although a custody determination rests to a great extent upon the trial court's assessment of credibility, temperament, and sincerity, this court's authority in custody matters is as broad as that of the trial court (see, Matter of Krebsbach v. Gallagher, supra ). Further, the deference ordinarily given to a trial court's findings is not warranted where its determination "lacks a sound and substantial basis in the record" (Linda R. v. Richard E., 162 A.D.2d 48, 50, 561 N.Y.S.2d 29; Fox v. Fox, 177 A.D.2d 209, 211-212, 582 N.Y.S.2d 863; Keating v. Keating, 147 A.D.2d 675, 538 N.Y.S.2d 286).

Upon the record before us, we find that the court's determination lacks a "sound and substantial" basis in the record (Fox v. Fox, supra; Keating v. Keating, supra ). Although the living arrangements which a party can offer a child constitute a relevant consideration in applying the "best interests" test (Keating v. Keating, supra ), the mere fact that the mother's accommodations were not as spacious as those available at the father's apartment was, by itself, an insufficient basis upon which to make an award of custody in the case at bar. Furthermore, the record fails to support the court's...