Torres v. Torres

• Decision Date: 23 December 2022
• Docket Number: 880,CAF 22-00159
• Citation: 211 A.D.3d 1597,180 N.Y.S.3d 422
• Parties: In the Matter of Shanda L. TORRES, Petitioner-Respondent, v. Jose L. TORRES, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

211 A.D.3d 1597

180 N.Y.S.3d 422

In the Matter of Shanda L. TORRES, Petitioner-Respondent,

v.Jose L. TORRES, Respondent-Appellant.

880

CAF 22-00159

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

Entered: December 23, 2022

TODD G. MONAHAN, LITTLE FALLS, FOR RESPONDENT-APPELLANT.

PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, WINSLOW, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this proceeding pursuant to article 6 of the Family Court Act, respondent father appeals from an order awarding sole legal and primary physical custody of the subject child to petitioner mother, with visitation to the father. The father contends that Family Court's determination to award sole legal and primary physical custody to the mother is not supported by a sound and substantial basis in the record. We reject that contention and affirm.

Preliminarily, we note that, because this proceeding involves an initial determination with respect to custody of the child, we may consider the parties’ informal custody arrangement, pursuant to which the parties had joint custody of the subject child with primary residence with the father, but the mother is not required to prove a change in circumstances in order to warrant modification of that arrangement (see Matter of Denise v. Denise , 129 A.D.3d 1539, 1539-1540, 11 N.Y.S.3d 369 [4th Dept. 2015] ; Matter of Thillman v. Mayer , 85 A.D.3d 1624, 1625, 926 N.Y.S.2d 779 [4th Dept. 2011] ).

"In making an initial custody determination, the court is ‘required to consider the best interests of the child by reviewing such factors as maintaining stability for the child, ... the home environment with each parent, each parent's past performance, relative fitness, ability to guide and provide for the child's overall well-being, and the willingness of each parent to foster a relationship with the other parent’ " ( Matter of Gilbert v. Nunez-Merced , 181 A.D.3d 1210, 1210, 118 N.Y.S.3d 481 [4th Dept. 2020], lv denied 35 N.Y.3d 910, 911, 2020 WL 5047579 [2020] ; see Matter of Athoe v. Goodman , 170 A.D.3d 1532, 1533, 94 N.Y.S.3d 528 [4th Dept. 2019] ).

Here, contrary to the father's contention, the court's determination to award sole legal and primary physical custody to the mother has a sound and substantial basis in the record (see Thillman , 85 A.D.3d at 1625, 926 N.Y.S.2d 779 ). "The court's determination following a hearing that the best...