Matter of Kozlowski v. Mangialino, 830 N.Y.S.2d 557 (App. Div. 2007)
Supreme Court of New York, Appellate Division, Second Department
January 30, 2007,
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.)
Counsel: 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.
Judges: REINALDO E. RIVERA, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, ROBERT J. LUNN, JJ. RITTER, J.P., KRAUSMAN, GOLDSTEIN and LUNN, JJ., concur.
Opinion
[**558] [*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.
The essential consideration in a custody determination is to promote the best interests of the child (see Eschbach v Eschbach, [*917] 56 NY2d 167, 171, 436 NE2d 1260, 451 NYS2d 658 [1982]; Friederwitzer v Friederwitzer, 55 NY2d 89, 95, 432 NE2d 765, 447 NYS2d 893 [1982]). [***2]
“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” [****2] (Matter of Plaza v Plaza, 305 AD2d 607, 759 NYS2d 368 [2003]; see Matter of Louise E.S. v W. Stephen S., 64 NY2d 946, 947, 477 NE2d 1091, 488 NYS2d 637 [1985]).
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 AD3d 383, 384, 796 NYS2d 403 [2005]; Miller v Pipia, 297 AD2d 362, 365, 746 NYS2d 729 [2002]; Young v Young, 212 AD2d 114, 118, 628 NYS2d 957 [1995]). 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. Ritter, J.P., Krausman, Goldstein and Lunn, JJ., concur.
