IN RE: Kenneth MORENO

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Kenneth MORENO, respondent, v. Maria CRUZ, appellant.

Decided: December 27, 2005

BARRY A. COZIER, J.P., GABRIEL M. KRAUSMAN, PETER B. SKELOS, and ROBERT J. LUNN, JJ. Salvatore C. Adamo, New York, N.Y., for appellant. Cheryl S. Solomon, Brooklyn, N.Y., for respondent. Carol Sherman, Brooklyn, N.Y. (Barbara H. Dildine of counsel), Law Guardian for the child.

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Kings County (Adams, J.), dated March 18, 2004, which, after a hearing, awarded permanent custody of the subject child to the father and established a visitation schedule for her.

ORDERED that the order is affirmed, without costs or disbursements.

 Among the relevant factors to be considered in making a proper custody award are:  “the parental guidance the custodial parent provides for the child;  the ability of each parent to provide for the child's emotional and intellectual development;  the financial status and ability of each parent to provide for the child;  [and] the overall relative fitness of the parties” (Matter of Rosiana C. v. Pierre S., 191 A.D.2d 432, 434, 594 N.Y.S.2d 316;  see Young v. Young, 212 A.D.2d 114, 117-118, 628 N.Y.S.2d 957).   Moreover, where, as here, domestic violence is alleged, “the court must consider the effect of such domestic violence upon the best interests of the child” (Domestic Relations Law § 240[1];  see Matter of Wissink v. Wissink, 301 A.D.2d 36, 39-40, 749 N.Y.S.2d 550).

Upon weighing the appropriate factors (see Matter of Wissink v. Wissink, supra;  Matter of Rosiana C. v. Pierre S., supra ), the Family Court correctly determined that the best interests of the child would be served by granting the father custody.   Although the mother denied certain allegations of her violent behavior and verbal abuse directed at the father and her daughter, the Family Court resolved the conflicting testimony in favor of the father, and on this record there is no basis to disturb the court's credibility determination (see Matter of Anonymous, 20 A.D.3d 562, 799 N.Y.S.2d 264).   Evidence of the mother's acts of domestic violence demonstrates that she possesses a character which is ill-suited to the difficult task of providing her young child with moral and intellectual guidance (see Matter of Irwin v. Schmidt, 236 A.D.2d 401, 402, 653 N.Y.S.2d 627;  Matter of Acevedo v. Acevedo, 200 A.D.2d 567, 568, 606 N.Y.S.2d 307;  Vogel v. Vogel, 149 A.D.2d 501, 502, 539 N.Y.S.2d 982).

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