Stewart v. Moseley

102 A.D.3d 973, 958 N.Y.S.2d 598

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 30, 2013
• Status: Published

Opinion

In a child custody proceeding pursuant to Family Court Act article 6, the father appeals, as limited by his brief, from so much of an order of the Family Court, Kings County (Hepner, J.), dated October 12, 2011, as denied his motion to reject the report of a Judicial Hearing Officer (Feldman, J.H.O.), dated July 19, 2011, made after a hearing, granted the respective cross motions of the mother and the child to confirm that report, and thereupon granted the mother’s cross petition for sole custody of the subject child.

Ordered that the order is affirmed insofar as appealed from, with costs to the mother.

The Family Court properly denied the father’s motion to reject, and properly granted the respective cross motions of the mother and the child to confirm, the report of a Judicial Hearing Officer which, among other things, recommended granting the mother’s cross petition for sole custody of the subject child. A Judicial Hearing Officer’s report should be confirmed when the findings are substantially supported by the record, and the Judicial Hearing Officer has clearly defined the issues and resolved matters of credibility (see Matter of Taub v Taub, 94 AD3d 901 [2012]; Breidbart v Wiesenthal, 44 AD3d 982, 984 [2007]). A custody determination depends to a great extent on the hearing court’s assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties (see Matter of Crivelli v Tolento, 100 AD3d 884 [2012]; Matter of Gilmartin v Abbas, 60 AD3d 1058 [2009]; Matter of Brian S. v Stephanie P., 34 AD3d 685 [2006]). After a complete evidentiary hearing, the Judicial Hearing Officer found that an award of sole custody to the mother was in the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]). This finding was supported by a sound and substantial basis in the record.

Moreover, the father’s contentions that the Judicial Hearing Officer was biased against him and deprived him of a fair hearing are without merit (see Matter of Solovay v Solovay, 94 AD3d 898 [2012]; Matter of Zeman v Knibbs, 86 AD3d 578 [2011]).

Accordingly, the Family Court properly confirmed the Judicial Hearing Officer’s report, and the recommendation contained therein to grant the mother’s cross petition for an award of sole custody of the parties’ child (see Matter of Smalls v Bayne, 64 AD3d 783 [2009]; Matter of Awan v Awan, 63 AD3d 733 [2009]; Matter of Oates v Wilson, 46 AD3d 904 [2007]). Balkin, J.P., Lott, Austin and Sgroi, JJ., concur.