Matter of Misty D.B. v David M.S.

Matter of Misty D.B. v David M.S. 2007 NY Slip Op 02316 [38 AD3d 1317] March 16, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 9, 2007

In the Matter of Misty D.B., Appellant,
v
David M.S., Respondent.

—[*1] Bonita J. Stubblefield, Piffard, for petitioner-appellant.

Vella & Vella, Springville (Gerald J. Vella of counsel), for respondent-respondent.

Appeal from an order of the Family Court, Cattaraugus County (Michael L. Nenno, J.), entered November 7, 2005 in a proceeding pursuant to Family Court Act article 6. The order continued joint custody of the child and awarded primary physical custody to respondent and visitation to petitioner.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: "A custody determination by the trial court must be accorded great deference (see, Eschbach v Eschbach, 56 NY2d 167, 173-174 [1982]) and should not be disturbed where . . . it is supported by a sound and substantial basis in the record" (Matter of Green v Mitchell, 266 AD2d 884, 884 [1999]). Here, Family Court's determination that the best interests of the child will be served by awarding primary physical custody to respondent is supported by a sound and substantial basis in the record. Contrary to the contention of petitioner, the fact that she had primary physical custody of the child for five years prior to her relocation to Florida "is not entitled to the same weight to which it would have been entitled had the child remained with petitioner" (Matter of Coryea v Allen, 262 AD2d 1023, 1024-1025 [1999], lv denied 94 NY2d 751 [1999]; see Matter of Johnston v Bridenbecker, 300 AD2d 1062, 1063 [2002]). Present—Hurlbutt, J.P., Gorski, Fahey, Peradotto and Green, JJ.