IN RE: Richard STEWARD (2025)

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Queens County (Connie Gonzalez, J.), dated October 31, 2023.  The order, insofar as appealed from, after a hearing, awarded the father sole legal and physical custody of the child, denied the mother's petition for sole legal and physical custody of the child, and awarded certain parental access to the mother.

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

The mother and the father are the parents of one child, born in New York in 2016.  The child lived with both parents in New York from April 2016 until January 2017, at which time the father left the mother and the child to live first in Maryland, then in Georgia, and then in Colorado.  In October 2019, the father filed a petition for parental access.  In November 2019, the mother filed a petition for sole legal and physical custody of the child.  In August 2022, while the proceeding was pending, the mother sent the child to live with the father in Colorado.  In an order dated October 31, 2023, after a hearing, the Family Court, inter alia, upon its finding that it was in the child's best interests to award the father sole legal and physical custody, awarded the father sole legal and physical custody of the child, denied the mother's petition for sole legal and physical custody of the child, and awarded certain parental access to the mother.  The mother appeals.

Contrary to the mother's contention, the Family Court had the authority to award sole legal and physical custody of the child to the father despite the absence of a petition definitively seeking that relief.  The father clearly testified at the hearing that he was seeking sole legal and physical custody of the child, which was evidently understood by the mother's counsel.  Thus, the mother had sufficient notice that both legal and physical custody of the child were at issue (see Matter of Jillian EE. v. Kane FF., 165 A.D.3d 1407, 1408, 86 N.Y.S.3d 262;  Matter of Vanita UU. v. Mahender VV., 130 A.D.3d 1161, 1163, 12 N.Y.S.3d 661;  cf.  Matter of Hirtz v. Hirtz, 108 A.D.3d 712, 714–715, 969 N.Y.S.2d 553).

Turning to the merits, “[t]he 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” (Matter of Merchan v. Hoyos, 199 A.D.3d 919, 920, 154 N.Y.S.3d 479;  see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  Matter of Beale v. Patterson, 236 A.D.3d 900, 901, 228 N.Y.S.3d 686).  “In determining an initial petition for child custody, the court must consider, among other things, (1) which alternative will best promote stability;  (2) the available home environments;  (3) the past performance of each parent;  (4) each parent's relative fitness, including his or her ability to guide the child, provide for the child's overall well being, and foster the child's relationship with the noncustodial parent;  and (5) the child's desires” (Matter of Merchan v. Hoyos, 199 A.D.3d at 920, 154 N.Y.S.3d 479 [internal quotation marks omitted];  see Matter of Guzman v. Nollah, 224 A.D.3d 902, 903, 206 N.Y.S.3d 352).  “A Family Court's credibility findings after a hearing on the issue of custody ‘will be accorded great weight on appeal, and its determinations regarding custody and parental access will not be disturbed unless they lack a sound and substantial basis in the record’ ” (Matter of Clarke v. Clarke, 222 A.D.3d 751, 752, 202 N.Y.S.3d 226, quoting Matter of McFarlane v. Jones, 193 A.D.3d 936, 936, 142 N.Y.S.3d 422;  see Matter of Merchan v. Hoyos, 199 A.D.3d at 920, 154 N.Y.S.3d 479).  “Where allegations of domestic violence are proven by a preponderance of the evidence, the court must consider the effect of such domestic violence upon the best interests of the child” (Matter of Cassissa v. Solares, 176 A.D.3d 697, 698, 111 N.Y.S.3d 359 [internal quotation marks omitted];  see Matter of Ravello v. Ravello, 187 A.D.3d 1021, 1022, 131 N.Y.S.3d 200).

Here, the Family Court's determination that an award of sole legal and physical custody of the child to the father was in the child's best interests has a sound and substantial basis in the record.  Accepting the court's credibility determinations, the evidence presented at the hearing showed, among other things, that the father was better suited to promote stability in the child's life than the mother and that the father was the parent most likely to foster the other parent's relationship with the child (see Matter of Clarke v. Clarke, 222 A.D.3d at 752, 202 N.Y.S.3d 226;  Matter of Merchan v. Hoyos, 199 A.D.3d at 921, 154 N.Y.S.3d 479).  Contrary to the mother's contention, the court did not fail to give proper consideration to the alleged incidents of domestic violence (see Matter of Devine v. Dominguez, 210 A.D.3d 768, 769, 177 N.Y.S.3d 345;  Matter of Murray v. Daves, 195 A.D.3d 1028, 1029, 146 N.Y.S.3d 805).

The mother's further contention that the Family Court erred in failing to order a forensic evaluation is unpreserved for appellate review, and, in any event, without merit (see Matter of Pacheco v. Maldonado, 221 A.D.3d 822, 823–824, 199 N.Y.S.3d 670).  The record does not indicate that a forensic evaluation was necessary to enable the court to reach its determination (see id.;  Matter of Quinones v. Quinones, 139 A.D.3d 1072, 1074, 32 N.Y.S.3d 607).

Furthermore, the Family Court providently exercised its discretion in crafting the parental access schedule, which is supported by a sound and substantial basis in the record (see Matter of Vidal v. Taneja, 218 A.D.3d 594, 596, 193 N.Y.S.3d 167;  Matter of Krubally v. Jobe, 161 A.D.3d 1076, 1077, 77 N.Y.S.3d 461).

GENOVESI, J.P., DOWLING, WAN and TAYLOR, JJ., concur.