IN RE: Franciel SCOTT (2018)

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Suffolk County (Matthew G. Hughes, J.), dated July 7, 2017.  The order, insofar as appealed from, after a hearing, granted the father's petition for sole custody of the parties' child and denied the mother's petition for sole custody of the parties' child.

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

The father and mother each filed a petition for sole custody of their child.  After a hearing, the Family Court awarded the father sole custody of the child and set forth a parental access schedule for the mother.  The mother 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’ ” (Matter of Gooler v. Gooler, 107 A.D.3d 712, 712, 966 N.Y.S.2d 208, quoting Matter of Julie v. Wills, 73 A.D.3d 777, 777, 899 N.Y.S.2d 669;  see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260).  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 Supangkat v. Torres, 101 A.D.3d 889, 890, 954 N.Y.S.2d 915;  see Matter of Tinger v. Tinger, 108 A.D.3d 569, 570, 968 N.Y.S.2d 573;  Matter of Swinson v. Brewington, 84 A.D.3d 1251, 1253, 925 N.Y.S.2d 96).  Moreover, pursuant to Domestic Relations Law § 240(1)(a), in any action or proceeding concerning custody or parental access where domestic violence is alleged, “the court must consider” the effect of such domestic violence upon the best interests of the child along with all the other relevant factors (see Matter of Felty v. Felty, 108 A.D.3d 705, 707, 969 N.Y.S.2d 557;  Matter of Wissink v. Wissink, 301 A.D.2d 36, 39, 749 N.Y.S.2d 550), when the allegations of domestic violence are proven by a preponderance of the evidence (see Bressler v. Bressler, 122 A.D.3d 659, 660, 996 N.Y.S.2d 160;  Matter of Andrews v. Mouzon, 80 A.D.3d 761, 761, 915 N.Y.S.2d 604).

Custody determinations depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, and therefore, deference is accorded to the trial court's findings in this regard (see Matter of Gooler v. Gooler, 107 A.D.3d at 712, 966 N.Y.S.2d 208).  Such findings will not be disturbed unless they lack a sound and substantial basis in the record (see id.;  see also Matter of Frankiv v. Kalitka, 105 A.D.3d at 1046, 963 N.Y.S.2d 393).

Contrary to the mother's contentions, the Family Court did not fail to give proper consideration to the parties' history of domestic violence.  Rather, the court found that both parents had engaged in acts of domestic violence in the presence of the child, and therefore, this factor did not favor either of the parents (see generally Matter of Saunders v. Stull, 133 A.D.3d 1383, 1383, 20 N.Y.S.3d 824;  Matter of Lamay v. Staves, 128 A.D.3d 1485, 1486, 8 N.Y.S.3d 811;  Matter of Frankiv v. Kalitka, 105 A.D.3d 1045, 1046, 963 N.Y.S.2d 393).  The court's determination that the child's best interests would be served by awarding sole custody to the father has a sound and substantial basis in the record and will not be disturbed (see Matter of Bowe v. Bowe, 124 A.D.3d 645, 646, 1 N.Y.S.3d 301;  Matter of Gribeluk v. Gribeluk, 120 A.D.3d 579, 580, 991 N.Y.S.2d 117).

The mother's remaining contention is not properly before this Court.

CHAMBERS, J.P., HINDS–RADIX, LASALLE and IANNACCI, JJ., concur.