Home » Practice Areas » Matrimonial & Family Law » Child Relocation » Garcia v. Becerra

68 A.D.3d 864, 890 N.Y.S.2d 625, 2009 N.Y. Slip Op. 09224 

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

In the Matter of David Garcia, appellant,

v.

Cindy Becerra, respondent. (Proceeding No. 1) In the Matter of Cindy Becerra, respondent, David Garcia, appellant. (Proceeding No. 2)

 

OPINION

2009-00374, 2009-00376, (Docket Nos. V-01706-05, V-03099-06)

Supreme Court, Appellate Division, Second Department, New York

Decided on December 8, 2009

 

WILLIAM F. MASTRO, J.P., ANITA R. FLORIO, RUTH C. BALKIN, JOHN M. LEVENTHAL, JJ.

APPEARANCES OF COUNSEL

Dawn M. Shammas, Jamaica, N.Y., for appellant.

Catherine A. Sheridan, Carle Place, N.Y., attorney for the child. 

DECISION & ORDER

In related child custody and visitation proceedings pursuant to Family Court Act article 6, the father appeals from (1) a decision of the Family Court, Queens County (Negron, Ct. Atty. Ref.), dated December 18, 2008, and (2), as limited by his brief, from stated portions of an order of the same court, also dated December 18, 2008, which, upon the decision, made after a hearing, inter alia, denied that branch of his petition which was for custody of the subject child, granted the mother's cross petition for custody of the subject child, and granted the mother's application for leave to relocate the subject child to Florida.

ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v Green Constr. Corp., 100 AD2d 509); and it is further,

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The primary consideration in any custody dispute is the best interests of the child (see Domestic Relations Law § 70[a]; Eschbach v Eschbach, 56 NY2d 167, 171). “Custody determinations depend to a very great extent upon the hearing court's assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties” (Matter of Brian S. v Stephanie P., 34 AD3d 685, 686 [citations omitted]). “Where a hearing court has conducted a complete evidentiary hearing, its finding must be accorded great weight, and its grant of custody will not be disturbed unless it lacks a sound and substantial basis in the record” (Matter of Venette v Rhodes, 301 AD2d 608, 608-609; see Eschbach v Eschbach, 56 NY2d at 173).*2

The Family Court's determination that the best interests of the child would be served by an award of custody to the mother was supported by a sound and substantial basis in the record and should not be disturbed (see Eschbach v Eschbach, 56 NY2d at 174; Matter of Brian S. v Stephanie, P., 34 AD3d at 686).

“When reviewing a custodial parent's request to relocate, the court's primary focus must be on the best interests of the child” (Matter of Giraldo v Gomez, 49 AD3d 645; see Matter of Said v Said, 61 AD3d 879, 881). The Family Court, upon weighing the appropriate factors set forth in Matter of Tropea v Tropea (87 NY2d 727, 740-741), properly determined that relocation was in the child's best interests.

The father's remaining contentions are without merit.

MASTRO, J.P., FLORIO, BALKIN and LEVENTHAL, JJ., concur.

James Edward Pelzer

Clerk of the Court

Copr. (c) 2010, Secretary of State, State of New York