COURT DISCRETION IN CHILD CUSTODY

Most interesting is that the court appointed a forensic but did not appoint an attorney for the child.

Ambrose v Ambrose, 2019 NY Slip Op 07757, Decided on October 30, 2019, Appellate Division, Second Department:

"In making an initial custody determination, the paramount consideration is the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 171; Cravo v Diegel, 163 AD3d 920, 921). "In determining the child's best interests, the court must consider, among other things, (1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent's relative fitness, including his or her ability to guide the child, provide for the child's overall well being, and foster the child's relationship with the noncustodial parent; and (5) the child's desires" (Rosenstock v Rosenstock, 162 AD3d 702, 703 [internal quotation marks omitted]). "Custody determinations depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, and therefore, deference is accorded to the trial court's findings in this regard. Such findings will not be disturbed unless they lack a sound and substantial basis in the record" (Cravo v Diegel, 163 AD3d at 922 [citation omitted]). Here, the Supreme Court conducted a full trial in which it observed the demeanor and heard the testimony of, among others, the parties, the child's preschool teachers, the paternal grandfather, the maternal grandmother, and a court-appointed forensic evaluator. Based on our review of the record, the court's determination awarding sole custody to the plaintiff has a sound and substantial basis in the record and will not be disturbed (see Cole v Cole, 172 AD3d 680, 681; Matter of Quinones v Quinones, 139 AD3d 1072, 1074). Contrary to the defendant's contention, the record demonstrates that the court appropriately considered all relevant factors in making its determination (see Patanella v Keveney, 145 AD3d 686, 687).

We reject the defendant's additional contention that the Supreme Court failed to give appropriate consideration and weight to the report and testimony of the court-appointed forensic evaluator. "A court is not automatically required to accept the recommendation of a court-appointed forensic evaluator, but must consider all of the relevant evidence. Moreover, in considering a forensic evaluator's recommendation, the court must take into account the quality of the evaluator's methods and report" (Matter of Vaysman v Conroy, 165 AD3d 954, 955). In this case, the court fully explained its reasons for according little weight to the report and testimony of the forensic evaluator and its rationale is amply supported by the record (see Matter of Selliah v Penamente, 107 AD3d 1004, 1005; Matter of Kelly v Hickman, 44 AD3d 941, 942).

The defendant's contention that the Supreme Court should have appointed an attorney for the child is unpreserved and, in any event, without merit. "While appointment of an attorney for the child in a contested custody matter remains the strongly preferred practice, such appointment is discretionary, not mandatory" (Matter of Quinones v Quinones, 139 AD3d at 1074 [internal quotation marks omitted]; see Matter of Keen v Stephens, 114 AD3d 1029, 1031-1032; Jean v Jean, 59 AD3d 599, 600). Under the circumstances of this case, including the young age of the child and the absence of any demonstrable prejudice to the child's interests, the court providently exercised its discretion in not appointing an attorney (see Matter of Quinones v Quinones, 139 AD3d at 1074)."