BARBATO v. BARBATO

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

Ralph BARBATO, appellant, v. Lori Ann BARBATO, respondent.

Decided: September 27, 1999

SONDRA MILLER, J.P., FRED T. SANTUCCI, THOMAS R. SULLIVAN and ANITA R. FLORIO, JJ. Mitchell P. Newman, Staten Island, N.Y., for appellant. Scheurer, Wiggin & Hardy, L.L.P., New York, N.Y. (Terence C. Scheurer and Paul B. Groman of counsel), for respondent. Kathleen M. Garrigan, Staten Island, N.Y., Law Guardian for the child.

In a matrimonial action in which the parties were divorced by judgment dated July 1, 1997, the plaintiff father appeals from (1) an order of the Supreme Court, Richmond County (Harkavy, J.), dated September 4, 1998, which, after a hearing, granted permanent custody of the subject child to the defendant mother, and (2) a decision of the same court, dated September 10, 1998.

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicchi v. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718);  and it is further,

ORDERED that the order is affirmed;  and it is further,

ORDERED that the respondent is awarded one bill of costs.

 It is axiomatic that custody determinations are to be made upon consideration of all relevant circumstances to reach the disposition that promotes the best interests of the child (see, Domestic Relations Law § 70 [a];  Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 93-95, 447 N.Y.S.2d 893, 432 N.E.2d 765;  Matter of DiMedio v. DiMedio, 233 A.D.2d 394, 650 N.Y.S.2d 746).   Interference with the relationship between the child and the noncustodial parent is an act so inconsistent with the best interests of the child as to raise a per se probability that the offending party is unfit to act as a custodial parent (see, Matter of Gago v. Acevedo, 214 A.D.2d 565, 566, 625 N.Y.S.2d 250;  Matter of Wolfer v. Wolfer, 183 A.D.2d 903, 904, 584 N.Y.S.2d 139).

 The analysis of the various factors to be taken into account in deciding a custody question is best made by the trial court, which is in the most advantageous position to evaluate the testimony, character, and sincerity of the parties (see, Matter of Louise E.S. v. W. Stephen S., 64 N.Y.2d 946, 488 N.Y.S.2d 637, 477 N.E.2d 1091;  Matter of Moore v McClenos, 259 A.D.2d 752, 687 N.Y.S.2d 402;  Hanway v. Hanway, 208 A.D.2d 499, 500, 617 N.Y.S.2d 54).   The trial court's determination will not be disturbed unless it lacks a sound and substantial basis in the record (see, Eschbach v. Eschbach, supra;  Matter of Moore v. McClenos, supra;  Matter of DiMedio v. DiMedio, supra).

 Our review of the record supports the trial court's conclusion that both the mother and father are responsible and loving parents, but that the mother would “offer [the child] the best opportunity to separate, individuate and to grow into his own person, without interfering in his maintaining a positive relationship with his father” (see, e.g., Mandelberg v. Mandelberg, 260 A.D.2d 553, 688 N.Y.S.2d 622;  Matter of DiMedio v. DiMedio, supra;  Matter of King v. King, 225 A.D.2d 697, 698, 639 N.Y.S.2d 465).

Under the circumstances of this case, the trial court did not improvidently exercise its discretion in declining to interview the eight-year-old child (see, Matter of McGrath v. Collins, 202 A.D.2d 719, 720-721, 608 N.Y.S.2d 556;  Smith v. Finger, 187 A.D.2d 711, 590 N.Y.S.2d 301;  Michael N.G. v. Elsa R., 185 A.D.2d 174, 586 N.Y.S.2d 788;  Mascoli v. Mascoli, 132 A.D.2d 653, 654, 518 N.Y.S.2d 25).

The father's remaining contentions are without merit.

MEMORANDUM BY THE COURT.

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