IN RE: Justina TIMOSA

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

IN RE: Justina TIMOSA, appellant, v. William CHASE, respondent.

Decided: September 26, 2005

THOMAS A. ADAMS, J.P., STEPHEN G. CRANE, GLORIA GOLDSTEIN, and PETER B. SKELOS, JJ. Larry S. Bachner, Jamaica, N.Y., for appellant. Marc E. Strauss, Rockville Centre, N.Y., for respondent. Zenith T. Taylor, Forest Hills, N.Y., Law Guardian for the children.

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Queens County (Heffernan, J.), dated September 8, 2004, which, after a hearing, inter alia, awarded custody of the parties' child to the father.

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

 Custody determinations are to be made upon consideration of the totality of the circumstances to reach the disposition that promotes the best interests of the child (see Domestic Relations Law §§ 70[a], 240[1][a];  Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260).   This requires an evaluation of the testimony, character, and sincerity of the parties, which generally “can best be made by the trial court which has direct access to the parties and can supplement that information with whatever professionally prepared reports are necessary” (Eschbach v. Eschbach, supra at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260).   The findings of the hearing court are therefore to be afforded the greatest respect and are only to be disturbed if they lack a sound and substantial basis in the record (see Eschbach v. Eschbach, supra;  Matter of Mutterperl v. Reyes, 293 A.D.2d 542, 543, 740 N.Y.S.2d 415).

 The mother's contention that the Family Court erred in considering the findings of the court-ordered reports is unpreserved for appellate review (see Matter of Diaz v. Santiago, 8 A.D.3d 562, 563, 779 N.Y.S.2d 229).   In any event, the Family Court, with the consent of the parties, properly considered the reports, which recommended that custody of the child be given to her father (see Aberbach v. Aberbach, 33 N.Y.2d 592, 593, 347 N.Y.S.2d 456, 301 N.E.2d 438).

Moreover, the court assessed the credibility of the parties in favor of the father and determined that an award of sole custody to the father was in the best interests of the child.   This finding was supported by a sound and substantial basis in the record and should not be disturbed (see Eschbach v. Eschbach, supra at 174, 451 N.Y.S.2d 658, 436 N.E.2d 1260).

The mother's remaining contentions are without merit.

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