IN RE: Nikki DESROCHES

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

IN RE: Nikki DESROCHES, respondent, v. Brian DESROCHES, appellant.

Decided: September 30, 2008

WILLIAM F. MASTRO, J.P., PETER B. SKELOS, JOSEPH COVELLO, and JOHN M. LEVENTHAL, JJ. John R. Lewis, Sleepy Hollow, N.Y., for appellant. Julie Gamache, New City, N.Y. (Nicole Harris of counsel), for respondent.

In a child custody proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Rockland County (Warren, J.), entered October 5, 2007, which, after a hearing, awarded custody of the parties' children to the mother.

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

 Custody matters are within the sound discretion of the Family Court, whose findings should be accorded great deference on appeal since it is in the best position to evaluate the testimony, character, and sincerity of the parties.   Thus, the Family Court's determination should not be disturbed unless it lacks a sound and substantial basis in the record (see Allain v. Allain, 35 A.D.3d 513, 513-514, 826 N.Y.S.2d 411;  Matter of Perez v. Montanez, 31 A.D.3d 565, 565-566, 817 N.Y.S.2d 677;  Matter of Morse v. Mignone, 240 A.D.2d 583, 659 N.Y.S.2d 791;  Matter of Canazon v. Canazon, 215 A.D.2d 652, 628 N.Y.S.2d 327).   Here, the award of custody to the mother is supported by a sound and substantial basis in the record which included the testimony of the parents, grandmothers, and other witnesses, and home study reports from the States of New York and Florida.

In a child custody proceeding, the appointment of an attorney for a child is within the discretion of the Family Court (see Family Ct. Act § 249;  Richard D. v. Wendy P., 47 N.Y.2d 943, 944, 419 N.Y.S.2d 949, 393 N.E.2d 1022;  Matter of Fallon v. Fallon, 4 A.D.3d 426, 427, 771 N.Y.S.2d 381;  Matter of Smith v. DiFusco, 282 A.D.2d 753, 724 N.Y.S.2d 337;  Matter of Walker v. Tallman, 256 A.D.2d 1021, 1022, 683 N.Y.S.2d 329;  Matter of Farnham v. Farnham, 252 A.D.2d 675, 677, 675 N.Y.S.2d 244).   Under the circumstances of this case, the Family Court providently exercised its discretion in not appointing an attorney for the children (see Richard D. v. Wendy P., 47 N.Y.2d 943, 944-945, 419 N.Y.S.2d 949, 393 N.E.2d 1022).

 The essential consideration in making an award of custody is the best interests of the children (see Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95, 447 N.Y.S.2d 893, 432 N.E.2d 765;  Matter of Mohen v. Mohen, 53 A.D.3d 471, 862 N.Y.S.2d 75;  Matter of Perez v. Martinez, 52 A.D.3d 518, 519, 860 N.Y.S.2d 128).   The decision to conduct in camera interviews to determine the best interests of the children in a custody dispute is also within the discretion of the trial court (see Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 273-274, 299 N.Y.S.2d 842, 247 N.E.2d 659;  Matter of Galanos v. Galanos, 28 A.D.3d 554, 555, 816 N.Y.S.2d 90;  Matter of Picot v. Barrett, 8 A.D.3d 288, 289, 777 N.Y.S.2d 698;  Matter of Walker v. Tallman, 256 A.D.2d 1021, 683 N.Y.S.2d 329).   Where, as here, the children were of a very young age and the parties did not request in camera interviews with them, the Family Court providently exercised its discretion in not conducting such interviews (see Matter of Picot v. Barrett, 8 A.D.3d 288, 289, 777 N.Y.S.2d 698).

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