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IN RE: Herbert MAGWOOD, respondent, v. Sharo MARTINEZ, appellant.
In a custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Suffolk County (Boggio, R.), dated December 7, 2005, which, after a hearing, inter alia, granted the father's petition for custody of the parties' daughter.
ORDERED that the order is affirmed, without costs or disbursements.
In adjudicating custody and visitation rights, the most important factor for the court to consider is the best interests of the child (see Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260), which requires an evaluation of the “totality of the circumstances” (Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95, 447 N.Y.S.2d 893, 432 N.E.2d 765). Since the hearing court's custody determination is largely dependent upon an assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parents, its determination should not be disturbed unless it lacks a sound and substantial basis in the record (see Matter of Louise E.S. v. W. Stephen S., 64 N.Y.2d 946, 488 N.Y.S.2d 637, 477 N.E.2d 1091; Matter of Coakley v. Goins, 240 A.D.2d 573, 659 N.Y.S.2d 75; Matter of Coyne v. Coyne, 150 A.D.2d 573, 541 N.Y.S.2d 448; Skolnick v. Skolnick, 142 A.D.2d 570, 530 N.Y.S.2d 235).
On this record, where there was a substantial change of circumstances, we discern no basis to disturb the Family Court's determination, made after a hearing and in camera interview with the subject child (see Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 272, 299 N.Y.S.2d 842, 247 N.E.2d 659), that is was in her best interest to award custody to the father (see Eschbach v. Eschbach, supra at 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Friederwitzer v. Friederwitzer, supra at 93-95, 447 N.Y.S.2d 893, 432 N.E.2d 765), and grant the mother visitation time (see Weiss v. Weiss, 52 N.Y.2d 170, 175, 436 N.Y.S.2d 862, 418 N.E.2d 377; Matter of Lozada v. Pinto, 7 A.D.3d 801, 776 N.Y.S.2d 860).
The mother's remaining contentions are without merit.
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Decided: December 19, 2006
Court: Supreme Court, Appellate Division, Second Department, New York.
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FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
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