| Matter of Smith v Smith |
| 2009 NY Slip Op 03415 [61 AD3d 1275] |
| April 30, 2009 |
| Appellate Division, Third Department |
| In the Matter of Katharine J. Smith, Respondent, v Michael S.Smith, Appellant. Christopher A. Pogson, as Law Guardian,Appellant. |
—[*1] Christopher A. Pogson, Law Guardian, appellant pro se. Kelley M. Eckmair, Oneonta, for respondent. Abbie Goldbas, Law Guardian, Utica.
Stein, J. Appeal from an order of the Family Court of Otsego County (Coccoma, J.), enteredFebruary 13, 2007, which granted petitioner's application, in a proceeding pursuant to Family CtAct article 6, for custody of the parties' children.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) were married in1989 and are the parents of a daughter and a son (born in 1992 and 1996, respectively). In July2004, the mother left the marital residence and moved in with her paramour. The parties createdan informal custody arrangement, whereby the children remained in the former marital residencewith the father and the mother enjoyed liberal visitation with them. The mother had unfetteredaccess to the marital residence and visited the children there on an almost daily basis. However,the father refused to allow the children to go to the mother's home, which she shared [*2]with her paramour, or to vacation with the mother.
After what she perceived to be an ongoing deterioration of her relationship with thedaughter—due in part to the father's alleged alienation of the daughter from themother—and the son's desire to spend more time with her, the mother commenced thisproceeding seeking the establishment of an appropriate custody arrangement providing for"reasonable, uninterrupted time" with each parent. Family Court granted the petition and, amongother things, awarded the mother sole custody and established a visitation schedule for the father.The father and the daughter's Law Guardian appeal.[FN1]
We affirm. Preliminarily, we note that this proceeding involves an initial custodydetermination, as the parties' prior arrangement was an informal one. Thus, "Family Court wasrequired to consider the best interests of the child[ren] by reviewing such factors as 'maintainingstability for the child[ren], the child[ren]'s wishes, the home environment with each parent, eachparent's past performance, relative fitness, ability to guide and provide for the child[ren]'s overallwell-being, and the willingness of each parent to foster a relationship with the other parent' " (Kaczor v Kaczor, 12 AD3d 956,958 [2004] [citation omitted], quoting Matter of Smith v Miller, 4 AD3d 697, 698 [2004]; see Matter of Anson v Anson, 20AD3d 603, 604 [2005], lv denied 5 NY3d 711 [2005]). Although the parties'informal arrangement is a factor to be considered, petitioner is not required to prove a substantialchange in circumstances in order to warrant a modification thereof (see Eschbach vEschbach, 56 NY2d 167, 171 [1982]).
Here, Family Court made extensive and detailed findings and there is ample support in therecord for the court's determination that the mother had "satisfactorily demonstrated. . . that she is stable, fit, and a good parent, genuinely concerned about the bestinterests of her children." For example, the mother resides in a comfortable home within fivemiles of the father's residence and in the same school district. She maintains gainful employmentand has demonstrated her financial responsibility by continuing to provide support for thechildren and the father despite the parents' physical separation. The mother's paramour is alsoemployed and involved in the community and there is no evidence that the mother's relationshipwith him is detrimental to the children's welfare. The record is replete with examples of themother's devotion to and concern for both children and also demonstrates that she is cognizant ofthe strained relationship that she has with her daughter and that she has articulated a realisticplan to rehabilitate that relationship.
To the contrary, the father remains unemployed even though he holds a Master's degree ineducation and could secure his teaching certification upon payment of a $50 fee.[FN2]The father has also failed to address certain behavior on the part of the son, despiteacknowledging that it is inappropriate, and sees no need to enroll the daughter in counseling toaddress undisputed self-destructive and risky conduct on her part. Significantly, the evidencedemonstrates that the father continues to harbor anger and resentment towards the mother, towhich he exposes the children. [*3]Despite his protestationregarding the mother's adulterous relationship with another man, he has steadfastly resistedattempts to resolve issues surrounding a dissolution of the marriage, including custody of thechildren. In addition, he has done nothing to address the daughter's animosity towards her motherand, indeed, appears to condone it. For example, he allowed the daughter to make complicatedarrangements for the opening of Christmas gifts so that she could avoid any contact with themother. We perceive no basis to disagree with Family Court's finding that the father is unwillingto encourage and foster a healthy relationship between the children and their mother. We alsofind that Family Court appropriately considered these factors in determining which custodialarrangement would be in the best interests of the children (see Labanowski v Labanowski, 4 AD3d 690, 695 [2004];Matter of Taber v Taylor, 238 AD2d 696, 697-698 [1997]). To the extent that the fatherdisputes specific findings made by Family Court after evaluating conflicting testimony, those arecredibility determinations to which we accord great deference (see Matter of Abare v St. Louis, 51AD3d 1069, 1070-1071 [2008]).
Upon our review of the entire record, including the transcript of the Lincoln hearing,we find no evidence that Family Court disregarded the wishes of either child (see Eschbach vEschbach, 56 NY2d at 172). As the children's wishes are but one factor to be considered(see id. at 173), the court was not required to abide by them. Overall, we conclude thatFamily Court properly weighed the applicable factors in ascertaining the best interests of thechildren, and its findings have a sound and substantial basis in the record. Therefore, we declineto disturb its determination (see Matter of Anson v Anson, 20 AD3d at 604).
We have reviewed the additional claims of the father and daughter and find them to beunpersuasive.
Mercure, J.P., Spain, Kavanagh and McCarthy, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote 1: The son's Law Guardian hassubmitted a brief arguing that Family Court's determination should be affirmed, at least insofaras it relates to the son.
Footnote 2: Like Family Court, we do notfind the father's asserted inability to pay this fee to be plausible based on the record before us.