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Matter of Wiebke v Wiebke and Matter of McFarland v Smith

This is a custody and visitation proceeding pursuant to Family Court Act article 6 wherein the father appeals from an order of the Family Court of Kings County dated 9 November 2009, which awarded sole custody of the subject children to the mother and only awarded him visitation from Monday at 6 P.M. to Wednesday at 6 P.M. on alternate weeks, with additional visitation upon agreement of the parties.

The criminal court affirms the order, without costs or disbursements.

Friederwitzer v Friedewitzer and Matter of Francois v Hall held that an award of custody must be based upon the best interests of the child, and there is no prima facie right to the custody of the child in either parent. Eschbach v Eschbach established that in considering questions of custody, the court must make every effort to determine what is in the best interest of the child, and what will promote the child’s welfare and happiness. Moreover, it should be noted that he best interests of the child are determined by a review of the totality of the circumstances.
Matter of Francois laid down the factors to be considered which include the quality of the home environment and parental guidance, the ability of each parent to provide for the child’s emotional and intellectual development, and the financial status and ability of each parent to provide for the child. The relative fitness of each parent, as well as the effect an award of custody to one parent might have on the child’s relationship with the other parent should be considered.

Further, consideration should be given to any prior award or agreement as to custody as held in Eschbach v. Eschbach. While not determinative, the court should consider the child’s expressed preference as an indication of what is in the child’s best interest.

Furthermore, if domestic violence is alleged, the court must consider the effects of such violence upon the child akin to the rulings in Matter of Julie v Wills and Matter of Moreno v Cruz and in accordance with Domestic Relations Law ยง 240[1].

In making a custody determination, the court may also consider the recommendation of a court-appointed expert, and the position of the attorney for the child as was done in Matter of Edwards v Rothschild, Matter of Rolon v Medina, Matter of Turnure v Turnure and Matter of Greene v Gordon.

Since weighing the factors relevant to any custody determination requires an evaluation of the testimony and the sincerity of the parties involved, such an evaluation is best made by the trial court as in the case of Eschbach v. Eschbach. A trial court’s determination regarding an award of custody should not be disturbed “unless it lacks a sound and substantial basis in the record” as in Matter of Faunteleroy v Mercado.

Matter of Wiebke v Wiebke and Matter of McFarland v Smith similarly held that the determination of visitation is entrusted to the sound discretion of the trial court, and such determination should not be set aside unless it lacks a sound and substantial basis.

In the case at bar, the criminal trial court, after having had the opportunity to evaluate the testimony, consider the recommendations of a forensic expert, interview the children in camera, and consider the position of the attorney for the children, determined that the children’s best interests would be served by an order awarding sole custody of the children to the mother and visitation to the father from Monday at 6 P.M. to Wednesday at 6 P.M. on alternate weeks. That determination is supported by the record, and should not be disturbed on appeal.

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