| Matter of Wentland v Rousseau |
| 2009 NY Slip Op 01258 [59 AD3d 821] |
| February 19, 2009 |
| Appellate Division, Third Department |
| In the Matter of Charlotte Wentland, Appellant, v Gary Rousseau,Respondent. |
—[*1] Steven Nussbaum, New Paltz, for respondent. Rebecca Millouras-Lettre, Law Guardian, Kingston.
Kavanagh, J. Appeal from an order of the Family Court of Ulster County (McGinty, J.),entered October 23, 2007, which dismissed petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, for custody of the parties' child.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) have a son (born in1997). Since before the child was born, the mother and father both resided in Pennsylvania. In2002, the mother left Pennsylvania and moved to New York with the child to live with DavidTerranella, a former boyfriend. In May 2006, after she had an argument with Terranella thatrequired police intervention, the mother contacted the father and told him that she had a fightwith Terranella, that she "couldn't take it no more" and asked the father to come and get her andthe child. The father moved the mother and child back to Pennsylvania and, for a brief period oftime, the three resumed living together. Less then one month later, the mother was arrested whenshe returned to New York to retrieve her belongings and was incarcerated on outstanding trafficwarrants. During this time, the child—from May 2006 through August2006—resided with the father, who then petitioned for custody in Pennsylvania. After shewas released from jail, the mother resumed residing with Terranella and filed a custody petitionin [*2]New York.[FN1]A hearing was held on the mother's petition and Family Court took testimony from fourwitnesses—the parties, Terranella, and Kim Kraft, a friend of the father—andconducted a Lincoln hearing. It also considered a psychological evaluation of the partiesand the child conducted by the Ulster County Mental Health Department. Ultimately, the courtawarded custody of the child to the father with visitation to the mother. The mother now appeals.
In determining the best interests of the child, Family Court was required to consider variousfactors, including how the decision would impact on the child's stability, the home environmentof both parents, "each parent's willingness to foster a relationship with the other parent, and theirpast performance and ability to provide for the [child's] overall well-being" (Matter of Clupper v Clupper, 56 AD3d1064, 1065-1066 [2008]; seeMatter of Smith v Miller, 4 AD3d 697, 698 [2004]). Family Court weighed thosefactors and determined that an award of custody to the father was in the child's best interests(see Eschbach v Eschbach, 56 NY2d 167, 172-174 [1982]; Matter of Anson v Anson, 20 AD3d603, 604 [2005], lv denied 5 NY3d 711 [2005]; Matter of Neail v Deshane, 19 AD3d 758, 758 [2005], lvdenied 5 NY3d 711 [2005]).[FN2]Our review leads us to conclude that the court's determination was supported by a sound andsubstantial basis in the record (seeMatter of Holle v Holle, 55 AD3d 991, 992 [2008]; Matter of Hissam v Mackin, 41 AD3d 955, 956 [2007], lvdenied 9 NY3d 809 [2007]; Matterof La Pointe v La Pointe, 33 AD3d 1174, 1175 [2006]).
The primary basis for Family Court's award of custody to the father was the nature of themother's relationship with Terranella and the fact that it periodically exposed the child toincidents of domestic violence. In that regard, the court heard the mother's description of theevents of May 2006 that prompted her to leave the home with the child, seek police interventionand call the father for assistance. Evidence was also presented that, on another occasion after anargument with Terranella, the mother was forced to flee the home with the child and spend thenight in the woods. There was also testimony that Terranella had on occasion pushed the childand had exposed him to marihuana.[FN3]While the mother and Terranella take issue with the court's [*3]characterization of their relationship, we defer to the court'scredibility determinations of the witnesses who had testified at the hearing and its reliance, inparticular, on the sworn testimony given by the father and Kraft (see Matter of Decker v Lackos, 41AD3d 916, 918 [2007]; Matter of Hissam v Mackin, 41 AD3d at 956; Matter ofAnson v Anson, 20 AD3d at 604; Matter of Drew v Gillin, 17 AD3d 719, 721 [2005]). We also notethat Family Court found that the mother's persistent denials that she and the child had beenexposed to domestic violence were not credible and that such a finding leads to the inevitableconclusion that the mother is simply unwilling to appreciate the harmful effects that exposure tothis type of conduct must, of necessity, have on the child.
The mother also asserts that Family Court's best interests analysis was flawed due to the factthat it failed to take into account that the father has a criminal conviction on his record forassaulting her. Simply because Family Court, in its assessment of all the evidence presented atthe hearing, may have placed more importance on the mother's and Terranella's recent behaviorand their admitted abuse of alcohol, in deciding what was in the child's best interests, does notmean that it did not consider all of the evidence introduced at the hearing. It is for the court todecide what importance is to be attributed to the evidence as presented and, unless thatevaluation lacks a sound and substantial basis, this Court will not disturb it (see Matter ofDecker v Lackos, 41 AD3d at 918; Matter of Hissam v Mackin, 41 AD3d at 956).
As for the child's express desire to continue to live with the mother, Family Court, in part,attributed this to the mother's persistent efforts to prevent the father from developing ameaningful relationship with the child (see Matter of Gravelding v Loper, 42 AD3d 740, 743 [2007]). Itfound that the mother had consistently demonstrated a "willingness to denigrate [the father] tothe child" and had "attempted to interfere with [the father's] relationship with hischild."[FN4]Simply stated, the record supports the court's conclusion that the mother's "history of exposingher son to alcohol abuse and domestic violence in [the] home indicate that she has been unable[,]for a significant period, to provide her son with a healthy home environment," and, therefore, weagree that it was in the child's best interests to award custody to the father (see Matter of Edward V. v Crystal W.,45 AD3d 1213, 1215 [2007], lv denied 10 NY3d 703 [2008]; compare Dewitt v Sheiness, 42 AD3d776, 777 [2007]; Matter of La Pointe v La Pointe, 33 AD3d at 1175).
Mercure, J.P., Lahtinen and Malone Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: In June 2006, a Pennsylvaniacourt awarded custody of the child to the father. The mother filed a custody petition that samemonth in New York, but withdrew it when the Pennsylvania order was vacated. Shesubsequently filed the instant petition in September 2006 and Family Court issued a temporaryorder awarding her custody of the child.
Footnote 2: The mother suggests thatbecause the child has been exclusively in her care since his birth, this was an informal custodialarrangement. Even if we accept this characterization, this would be but one of the factorsrelevant to a best interests analysis and, in fact, Family Court gave it proper consideration(see Matter of Anson v Anson, 20 AD3d at 604).
Footnote 3: To the extent that the mother'sbrief can be read as raising a claim that Family Court erred in taking into account statementsattributed to the child, the statements were properly admitted. Family Ct Act § 1046 (a)(vi) is applicable to custody proceedings that are based in part upon allegations of abuse orneglect, and the subject child's prior out-of-court statements are excepted from the rule againsthearsay if they are sufficiently corroborated (see Matter of Cobane v Cobane, 57 AD3d 1320, 1322 [2008]; Matter of Bernthon v Mattioli, 34AD3d 1165 [2006]), as they were here.
Footnote 4: While the Law Guardianadvocated at the hearing on behalf of the child's desire to remain with his mother, her brief onappeal supports the father's position to affirm the custody order.