GOIKHMAN v. BITON (2020)

DECISION & ORDER

ORDERED that the decision and order is affirmed insofar as appealed from, without costs or disbursements;  and it is further,

ORDERED that the judgment of divorce is affirmed insofar as appealed from, without costs or disbursements.

The parties were married in a civil ceremony in 2005 and a religious ceremony in 2006.  They have two children together.

The mother commenced an action for a divorce and ancillary relief in February 2015 following a domestic incident in January 2015.  The mother was awarded a temporary order of protection against the father.  The mother later filed a family offense petition in May 2015.  Both parties filed petitions for custody of the children.  The action for a divorce was transferred to the Integrated Domestic Violence (IDV) part of the Supreme Court on September 10, 2015, to join the family offense proceeding, as well as a related criminal matter (see 22 NYCRR 141.4[b] ).

In a decision and order dated February 5, 2018, after a nonjury trial, the Supreme Court, inter alia, directed the issuance of an order of protection against the father requiring him to stay away from the mother for a period of five years, finding that the father's commission of family offenses against the mother in front of the children constituted aggravating circumstances warranting the imposition of a five-year order of protection.  In a judgment of divorce entered June 1, 2018, the court awarded the mother sole legal and physical custody of the children and awarded the father parental access with the children on alternate weekends from Friday at 5:00 p.m. until Saturday at 6:00 p.m., as well as an alternating schedule of school, religious, and legal holidays.  The father appeals.

“An award of custody must be based upon the best interests of the child, and there is no prima facie right to the custody of the child in either parent” (Bressler v. Bressler, 122 A.D.3d 659, 659, 996 N.Y.S.2d 160).  “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” (Matter of Carr v. Thomas, 169 A.D.3d 903, 904, 94 N.Y.S.3d 333).  Here, the Supreme Court's determination that the children's best interests would be served by awarding sole legal and physical custody to the mother has a sound and substantial basis in the record and will not be disturbed (see Matter of Masri v. Masri, 171 A.D.3d 1183, 99 N.Y.S.3d 61;  Matter of Carr v. Thomas, 169 A.D.3d at 904, 94 N.Y.S.3d 333).

The determination of parental access also is within the sound discretion of the court based upon the best interest of the children (see Matter of Lane v. Lane, 68 A.D.3d 995, 997, 892 N.Y.S.2d 130), and should not be set aside unless it lacks a sound and substantial basis in the record (see Reilly v. Hager–Reilly, 166 A.D.3d 825, 827, 88 N.Y.S.3d 83).  Here, the Supreme Court's determination as to the father's parental access with the children has a sound and substantial basis in the record, and there is no basis to disturb it (see id. at 827, 88 N.Y.S.3d 83).

The Supreme Court's determination directing the issuance of an order of protection against the father requiring him to stay away from the mother for a period of five years, upon its finding that the father's commission of family offenses against the mother in front of the children constituted aggravating circumstances warranting the imposition of a five-year order of protection, is supported by the record.  The record established that the father committed family offenses against the mother in the presence of the children (see Family Ct. Act §§ 827[a][vii];  842;  Matter of Harry v. Harry, 85 A.D.3d 790, 791, 924 N.Y.S.2d 816;  Matter of Reilly v. Reilly, 254 A.D.2d 361, 688 N.Y.S.2d 153).  Under the circumstances of this case, a five-year order of protection is appropriate (see generally Matter of Kaur v. Singh, 112 A.D.3d 933, 934, 978 N.Y.S.2d 299).

Accordingly, we affirm the decision and order and the judgment of divorce insofar as appealed from.

DILLON, J.P., DUFFY, BARROS and CONNOLLY, JJ., concur.