Ocampo, Respondent, v Jimenez, Appellant.

2005-03909, (Docket No. V-20887/04)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

2006 NY Slip Op 2380; 27 A.D.3d 753; 815 N.Y.S.2d 629; 2006 N.Y. App. Div. LEXIS 3795

March 28, 2006, Decided

COUNSEL: Frederick Klarer, Melville, N.Y., for appellant.

Kramer & Rabinowitz, LLC, Commack, N.Y. (Debra L. Rubin of counsel), for respondent.

Beth A. Rosenthal, Deer Park, N.Y., Law Guardian for the child.

JUDGES: ROBERT W. SCHMIDT, J.P., THOMAS A. ADAMS, FRED T. SANTUCCI, PETER B. SKELOS, JJ. SCHMIDT, J.P., ADAMS, SANTUCCI and SKELOS, JJ., concur.

In a child custody proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (MacKenzie, J.), dated March 23, 2005, which, after a hearing, awarded custody of the parties’ child to the mother.

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

The Family Court’s determination as to custody should not be disturbed unless it lacks a sound and substantial basis in the record (see Matter of Ortiz v Maharaj, 8 AD3d 574, 779 NYS2d 220 [2004]; Matter of Skratt v Henry, 6 AD3d 719, 775 NYS2d 544 [2004]). Furthermore, the Family Court’s determination as to credibility should be accorded great weight on appeal, since it saw and heard the witnesses (see Eschbach v Eschbach, 56 NY2d 167, 173, 436 NE2d 1260, 451 NYS2d 658 [1982]; Matter of Maust v Pignetti, 270 AD2d 274, 703 NYS2d 531 [2000]).

Contrary to the father’s contentions, the evidence presented at the hearing amply supports the Family Court’s determination that awarding sole custody to the mother is in the child’s best interests (see Matter of Jarushewsky v Baez, 7 AD3d 713, 776 NYS2d 847 [2004]; Vinciguerra v Vinciguerra, 294 AD2d 565, 743 NYS2d 139 [2002]). An important factor in the Family Court’s determination was the finding, supported by the record, that the father was less than credible throughout the proceeding. Given that the mother was supportive of visitation, that both parties are loving parents, that the mother was available to [*2] care for the child and address her special needs, and that the mother was the primary caretaker of the child since her birth, the Family Court properly awarded custody of the child to the mother (see Cohen v Merems, 2 AD3d 663, 664, 768 NYS2d 637 [2003]).

We note that the order of protection issued in this case was not appealed from and is not subject to review on this appeal. Schmidt, J.P., Adams, Santucci and Skelos, JJ., concur.