Jensen v. Harris , 604 N.Y.S.2d 842 ( 1993 )

—Order unanimously affirmed without costs. Memorandum: After trial, Family Court determined that the best interests of the parties’ children would be served by an award of custody to petitioner. The findings of the trial court have a sound and substantial basis in the record and the record shows that the court properly weighed the appropriate factors in its determination of the best interests of the children (see, Eschbach v Eschbach, 56 NY2d 167, 171-172; Matter of Beyer v Tranelli-Ashe, 195 AD2d 972; Matter of Krebsbach v Gallagher, 181 AD2d 363, 364, lv denied 81 NY2d 701).

We reject respondent’s contention that the court erred in relying upon the Law Guardian’s recommendation because the Law Guardian had never spoken with the children and was thus unable to communicate their wishes. At the time of trial, the children were two and three years old and, therefore, "not of sufficient maturity to weigh intelligently the factors essential to making a wise choice as to custody” (Fox v Fox, 177 AD2d 209, 211). (Appeal from Order of Monroe County Family Court, Maas, J.—Custody.) Present—Denman, P. J., Green, Lawton, Fallon and Boehm, JJ.