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  • Kozlowski v. Mangialino,36 A.D.3d 916, 830 N.Y.S.2d 557, N.Y(2d Dept.,2007): Won child custody appeal proving Law Guardians Do Not Determine Custody

Supreme Court, Appellate Division, Second Department, New York

In the Matter of Emilia KOZLOWSKI, respondent,

v.

Thomas MANGIALINO, appellant. (Proceeding No. 1).

In the Matter of Thomas Mangialino, appellant,

v.Emilia Kozlowski, respondent. (Proceeding No. 2).

Jan. 30, 2007.

Background:   In two related child custody proceedings, father appealed order of the Family Court, Queens County, DePhillips, J., which granted mother's petition for custody of child and awarded liberal unsupervised visitation to father.

Holding:   The Supreme Court, Appellate Division, held that determination would not be disturbed. 

Affirmed.

West Headnotes

[1] Child Custody 76D 922(1)

76D Child Custody      76DXIII Appeal or Judicial Review            76Dk913 Review                76Dk922 Questions of Fact and Findings of Court                      76Dk922(1) k. In General. Most Cited Cases

Family Court's determination in child custody proceeding, granting the mother's petition for custody of the child, and awarded liberal unsupervised visitation to father, had a sound and substantial basis in the record and would not be disturbed.

[2] Child Custody 76D 76

76D Child Custody      76DII Grounds and Factors in General            76DII(C) Factors Relating to Child                76Dk76 k. Welfare and Best Interest of Child. Most Cited Cases

Essential consideration in a custody determination is to promote the best interests of the child.

[3] Child Custody 76D 922(2)

76D Child Custody      76DXIII Appeal or Judicial Review            76Dk913 Review                76Dk922 Questions of Fact and Findings of Court                      76Dk922(2) k. Credibility of Witnesses. Most Cited Cases

Since Family Court's child 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.

[4] Child Custody 76D 421

76D Child Custody      76DVIII Proceedings            76DVIII(A) In General                76Dk421 k. Reports and Recommendations. Most Cited Cases

The recommendations of court-appointed experts and the positions of Law Guardians are factors to be considered in making a child custody determination and are entitled to some weight, but they are not determinative and do not usurp the judgment of the trial judge.

**558 Dominic A. Barbara, Garden City, N.Y. (Joshua Adam Kittenplan of counsel), for appellant. 

Susan Chana Lask, New York, N.Y., for respondent.

Emanuel Saidlower, Jamaica, N.Y., Law Guardian for the child.

REINALDO E. RIVERA, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, and ROBERT J. LUNN, JJ.

*916 In two related child custody proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Queens County (DePhillips, J.), dated October 27, 2005, which, after a hearing, granted the mother's petition for custody of the child, and awarded liberal unsupervised visitation to him.

ORDERED that the order is affirmed, with costs.

[1][2][3][4] The essential consideration in a custody determination is to promote the best interests of the child (see  *917Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260;     Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95, 447 N.Y.S.2d 893, 432 N.E.2d 765).   "Since the Family 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 Plaza v. Plaza, 305 A.D.2d 607, 759 N.Y.S.2d 368;   see  Matter of Louise E.S. v. W. Stephen S., 64 N.Y.2d 946, 947, 488 N.Y.S.2d 637, 477 N.E.2d 1091).   The recommendations of court-appointed experts and the positions of Law Guardians are factors to be considered in making a custody determination and are entitled to some weight (see  Neuman v. Neuman, 19 A.D.3d 383, 384, 796 N.Y.S.2d 403;     Miller v. Pipia, 297 A.D.2d 362, 365, 746 N.Y.S.2d 729;     Young v. Young, 212 A.D.2d 114, 118, 628 N.Y.S.2d 957).   However, they are not determinative and do not usurp the judgment of the trial judge (see Neuman v. Neuman, supra).

Under the circumstances of this case, we decline to disturb the Family Court's determination.

N.Y.A.D. 2 Dept.,2007.Kozlowski v. Mangialino36 A.D.3d 916, 830 N.Y.S.2d 557, 2007 N.Y. Slip Op. 00649

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