IN RE: Jeanto HERCSKY (2026)

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (Matthew Hughes, J.), dated November 29, 2023.  The order, insofar as appealed from, after a hearing, in effect, granted that branch of the mother's petition which was to modify a so-ordered stipulation of custody and parental access dated June 6, 2016, so as to award her sole legal and residential custody of the parties’ child, and denied that branch of the father's petition which was to modify the so-ordered stipulation of custody and parental access so as to award him sole legal and residential custody of the child.

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

The father and the mother are the parents of one child, born in 2014.  Pursuant to a so-ordered stipulation of custody and parental access dated June 6, 2016 (hereinafter the stipulation), the parties agreed, among other things, to share joint legal custody of the child, that the mother would have primary residential custody of the child, and that the father would have certain parental access with the child.  The stipulation further provided that either party could seek a de novo determination of the custody and/or parental access provisions as of January 2019.

In March 2019, the father commenced a proceeding, inter alia, to modify the stipulation so as to award him sole legal and residential custody of the child.  In October 2019, the mother commenced a proceeding, among other things, to modify the stipulation so as to award her sole legal and residential custody of the child.  In an order dated November 29, 2023, after a hearing, the Family Court, inter alia, in effect, granted that branch of the mother's petition which was to modify the stipulation so as to award her sole legal and residential custody of the child and denied that branch of the father's petition which was to modify the stipulation so as to award him sole legal and residential custody of the child.  The father appeals.

The 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;  Matter of Pollack v. Slasten, 237 A.D.3d 720, 721, 230 N.Y.S.3d 701;  Matter of Rennie v. Cooks, 195 A.D.3d 622, 144 N.Y.S.3d 622).  Inasmuch as a court's custody determination is dependent in large part upon its assessment of the witnesses’ credibility and upon the character, temperament, and sincerity of the parents, the court's exercise of its discretion will not be disturbed if supported by a sound and substantial basis in the record (see Matter of Garrick v. Simon, 197 A.D.3d 1316, 1316, 152 N.Y.S.3d 326;  Matter of Rennie v. Cooks, 195 A.D.3d at 622, 144 N.Y.S.3d 622;  Matter of Supangkat v. Torres, 101 A.D.3d 889, 890, 954 N.Y.S.2d 915).  Here, the Family Court's determination that the child's best interests would be served by awarding sole legal and residential custody to the mother has a sound and substantial basis in the record and will not be disturbed (see Matter of Garrick v. Simon, 197 A.D.3d at 1316, 152 N.Y.S.3d 326;  Matter of Rennie v. Cooks, 195 A.D.3d at 622, 144 N.Y.S.3d 622;  Matter of Murphy v. Lewis, 149 A.D.3d 748, 749, 51 N.Y.S.3d 155).

The mother's remaining contention is without merit.

IANNACCI, J.P., WOOTEN, DOWLING and MCCORMACK, JJ., concur.