IN RE: Bryan A. KELLY (2007)

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Queens County (Negron, Ct.Atty.Ref.), dated June 23, 2006, as awarded sole custody of the subject child to the father.

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

 In child custody determinations, a court must decide what is in the best interests of the child, and what will best promote his or her welfare and happiness (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  see also Zafran v. Zafran, 306 A.D.2d 468, 469, 761 N.Y.S.2d 317;  Vinciguerra v. Vinciguerra, 294 A.D.2d 565, 566, 743 N.Y.S.2d 139).   This determination is “entrusted to the sound discretion of the trial court, which is in the most advantageous position to evaluate the testimony, character, and sincerity of the parties” (Vinciguerra v. Vinciguerra, 294 A.D.2d 565, 743 N.Y.S.2d 139).  “Its determination will not be set aside unless it lacks a sound and substantial basis in the record” (Vinciguerra v. Vinciguerra, 294 A.D.2d at 566, 743 N.Y.S.2d 139;  see Zafran v. Zafran, 306 A.D.2d at 468, 761 N.Y.S.2d 317).

The record in this case provides a sound and substantial basis for the custody determination.   Although both parties appear to be capable and loving parents, under the circumstances of this case, it is in the best interests of the subject child for the father to have custody (see Berstell v. Krasa-Berstell, 272 A.D.2d 566, 567, 708 N.Y.S.2d 451;  Zafran v. Zafran, 306 A.D.2d at 469, 761 N.Y.S.2d 317).

The Family Court was not required to accept the recommendation of the court-appointed forensic psychologist that joint custody be awarded (see Matter of Sienkwicz v. Sienkwicz, 298 A.D.2d 396, 751 N.Y.S.2d 398;  Matter of Maysonet v. Contreras, 290 A.D.2d 510, 736 N.Y.S.2d 263;  Matter of McCoy v. McCoy, 277 A.D.2d 384, 385, 717 N.Y.S.2d 194;  Berstell v. Krasa-Berstell, 272 A.D.2d at 567, 708 N.Y.S.2d 451).   Notably, the forensic psychologist found the father to be the more reliable parent and the law guardian, whose position was that joint custody be awarded, opined that the child should reside primarily with the father (see Berstell v. Krasa-Berstell, 272 A.D.2d at 567, 708 N.Y.S.2d 451).   Nor were the recommendation of the forensic psychologist and the position of the law guardian arbitrarily disregarded;  rather, the Family Court fully explained its reasons for rejecting the recommendation and the position, respectively (see Berstell v. Krasa-Berstell, 272 A.D.2d at 567, 708 N.Y.S.2d 451).   The Family Court's rationale is amply supported by the record, which demonstrated that the parties were unable to communicate or cooperate.   Moreover, the forensic psychologist admitted that he reluctantly recommended joint custody due to the parents' poor working relationship (see Matter of Tavarez v. Musse, 31 A.D.3d 458, 817 N.Y.S.2d 667;  Palumbo v. Palumbo, 292 A.D.2d 358, 360, 738 N.Y.S.2d 90;  Matter of George W.S. v. Donna S., 187 A.D.2d 657, 659, 590 N.Y.S.2d 262).