Kom v. Kom

In a habeas corpus proceeding to determine custody of the infant issue of the parties, the petitioner mother appeals from an amended order of the Supreme Court, Suffolk County (Colby, J.), dated December 4, 1989, which, after a hearing, inter alia, awarded custody of the children to the father and granted the mother certain visitation rights.

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

In awarding custody of the parties’ six children to the father, the Supreme Court appropriately evaluated the totality of the circumstances, including the children’s wishes, the relative fitness of the parents, the quality of each parent’s home environment, the willingness of each parent to promote a continuing relationship with the other parent and the ability of each parent to provide for the intellectual and emotional needs and development of the children (see, Eschbach v Eschbach, 56 NY2d 167). Contrary to the mother’s contention, the Supreme Court did not give undue weight to the preferences of the children, who had been residing with their father for about 2 Vi years prior to the hearing. Upon our review of the Supreme Court’s in camera interviews with the children, as well as the hearing testimony of the oldest child, we find that all six children were of sufficient age and/or sufficient intelligence to express their wishes, which were clearly based on their accurate views of each parent’s strengths and weaknesses. Further, the Supreme Court properly found that the children were not influenced either by their father or their siblings.

We find no basis on this record for disturbing the Supreme Court’s determination which only granted the mother limited visitation with the parties’ two youngest children. However, since the hearing on the writ occurred between April and May of 1989, and the Supreme Court directed the parties and each of the children to submit to counseling on a weekly basis, with the counseling service to file an evaluation no later than three months after December 4, 1989, our determination is without prejudice to a further application by the mother, if she be so advised, for expanded visitation with her six children.

The mother’s remaining contentions are without merit. Brown, J. P., Lawrence, Kunzeman and Kooper, JJ., concur.