IN RE: Naomi PALMER-CARDONA

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

IN RE: Naomi PALMER-CARDONA, appellant, v. Jose CARDONA, respondent.  (Proceeding No. 1)

In Matter of Jose Cardona, respondent, v. Naomi Palmer-Cardona, appellant.  (Proceeding No. 2).

Decided: June 30, 2009

STEVEN W. FISHER, J.P., ANITA R. FLORIO, JOSEPH COVELLO, and THOMAS A. DICKERSON, JJ. Edward E. Caesar, Brooklyn, N.Y., for appellant. Deana Balahtsis, New York, N.Y., for respondent. Karen P. Simmons, Brooklyn, N.Y. (Janet Neustaetter and Barbara H. Dildine of counsel), attorney for the child.

In related child custody proceedings pursuant to Family Court Act article 6, and a family offense proceeding pursuant to Family Court Act article 8, the mother appeals from (1) stated portions of a combined decision and order of the Supreme Court, Kings County (Henry, J.)(IDV Part), dated November 29, 2007, which decision was made, after a hearing, on the father's petition for sole legal custody, and which order dismissed her family offense proceeding, and (2) an order of the same court, also dated November 29, 2007, which, upon the decision, granted the father's petition for sole legal custody.

ORDERED that the appeal from so much of the combined decision and order as was made, after a hearing, on the father's petition for sole legal custody, is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718);  and it is further,

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

ORDERED that the order granting the father's petition for sole legal custody is affirmed, without costs or disbursements.

 “Any court in considering questions of child custody must make every effort to determine what is for the best interest of the child, and what will best promote its welfare and happiness” (Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [internal quotation marks omitted];  see Zafran v. Zafran, 306 A.D.2d 468, 469, 761 N.Y.S.2d 317).   The court must look at the totality of circumstances and “[f]actors to be considered in determining those best interests include the parental guidance provided by the custodial parent, each parent's ability to provide for the child's emotional and intellectual development, each parent's ability to provide for the child financially, the relative fitness of each parent, and the effect an award of custody to one parent might have on the child's relationship with the other parent” (Matter of Berrouet v. Greaves, 35 A.D.3d 460, 461, 825 N.Y.S.2d 719;  see Zafran v. Zafran, 306 A.D.2d at 469, 761 N.Y.S.2d 317).  “Since the [court's] custody determination is largely dependent upon an assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parents, its determination should not be disturbed unless it lacks a sound and substantial basis in the record” (Matter of Dobbins v. Vartabedian, 304 A.D.2d 665, 666, 758 N.Y.S.2d 153).

 Here, the Supreme Court's award of sole custody to the father is supported by a sound and substantial basis in the record (id. at 666, 758 N.Y.S.2d 153).   The Supreme Court's determination that it was in the best interests of the child for the father to have custody was based on, inter alia, its assessment of the credibility of the parties and its finding that the child would benefit from the stability of the home provided by the father (see Matter of Lightbody v. Lightbody, 42 A.D.3d 537, 538, 840 N.Y.S.2d 131;  Matter of Turnure v. Turnure, 37 A.D.3d 727, 728, 831 N.Y.S.2d 216;  Matter of Berrouet v. Greaves, 35 A.D.3d 460, 825 N.Y.S.2d 719;  Matter of Dobbins v. Vartabedian, 304 A.D.2d at 666, 758 N.Y.S.2d 153).   Under these circumstances, we decline to disturb the Supreme Court's custody award.

Contrary to the mother's contention, the Supreme Court properly dismissed her family offense proceeding (cf., Matter of Halper v. Halper, 61 A.D.3d 687, 875 N.Y.S.2d 916;  Matter of Ford v. Pitts, 30 A.D.3d 419, 420, 817 N.Y.S.2d 332;  Matter of Lallmohamed v. Lallmohamed, 23 A.D.3d 562, 806 N.Y.S.2d 622).

The mother's remaining contention is without merit.

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