Matter of Sanchez v. Rexhepi

138 A.D.3d 869, 30 N.Y.S.3d 170

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 13, 2016
• Docket: 2014-05740
• Status: Published

Opinion

Appeal from an order of the Family Court, Queens County (Fran L. Lubow, J.), dated April 29, 2014. The order, after a hearing, granted the father’s petition for sole custody of the subject child and, in effect, denied the mother’s petition for sole custody of the subject child.

Ordered that the order is affirmed, without costs or disbursements.

The parties are the parents of one child, a son born in July 2011. The father filed a petition for sole custody of the subject child, alleging, inter alia, that the child was being physically and emotionally abused by the mother. The mother also filed a petition for sole custody of the subject child. After a hearing, the Family Court awarded the father sole legal and physical custody of the subject child and certain visitation to the mother. The mother appeals.

The Family Court did not err in granting the father’s petition for sole custody of the subject child. Under the totality of the circumstances, that determination was in the best interests of the child (see Matter of Gooler v Gooler, 107 AD3d 712 [2013]; Matter of Julie v Wills, 73 AD3d 777 [2010]; see also Eschbach v Eschbach, 56 NY2d 167, 171 [1982]). Since custody determinations depend in large part on the hearing court’s assessments of the credibility, character, temperament, and sincerity of the parties, the Family Court’s determination should be accorded deference, and its determination should not be disturbed unless it lacks a sound and substantial basis in the record (see Matter of Welch v Taylor, 115 AD3d 754 [2014]; Matter of McKoy v Vatter, 106 AD3d 1090 [2013]; Matter of Roldan v Nieves, 76 AD3d 634 [2010]). Here, the Family Court determined that the father’s testimony was credible, while the mother’s was not credible, and we discern no reason to disturb the Family Court’s credibility determination.

Contrary to the mother’s contention, the Family Court did not violate the best evidence rule in admitting into evidence copies of recordings of conversations between the parties. The best evidence rule applies only where a party seeks to prove the contents of a writing, in which case the original must be produced or its absence satisfactorily explained (see Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d 639, 643 [1994]; Amica Mut. Ins. Co. v Kingston Oil Supply Corp., 134 AD3d 750 [2015]; Maini v Syscore Consulting Corp., 13 Misc 3d 1215[A], 2006 NY Slip Op 51844[U] [Sup Ct, Nassau County 2006]). A proper foundation was laid for the admission of the recordings, as the father, a participant in the conversations, testified that he had personally recorded the conversations, and that the recordings were a fair and accurate representation of those conversations and had not been altered (see Matter of Giresi-Palazzolo v Palazzolo, 127 AD3d 752 [2015]; Matter of Hirsh v Stern, 74 AD3d 967 [2010]).

Although the attorney for the child contends that joint custody would be in the subject child’s best interests, joint custody is inappropriate here, as the parties are antagonistic toward each other and have demonstrated an inability to cooperate on matters concerning the child (see Matter of Florio v Niven, 123 AD3d 708 [2014]; Matter of Lawrence v Davidson, 109 AD3d 826 [2013]).

Dillon, J.P., Austin, Maltese and Barros, JJ., concur.