| Matter of Shangraw v Shangraw |
| 2009 NY Slip Op 03428 [61 AD3d 1302] |
| April 30, 2009 |
| Appellate Division, Third Department |
| In the Matter of William Shangraw, Respondent, v Sherry M.Shangraw, Appellant. |
—[*1] Christopher A. Barton, Elmira, for respondent. Paul A. Sartori, Law Guardian, Elmira.
Peters, J.P. Appeal from an order of the Family Court of Chemung County (Hayden, J.),entered August 14, 2008, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, to modify a prior order of custody.
In 2006, petitioner (hereinafter the father) and respondent (hereinafter the mother) stipulatedto joint legal and shared physical custody of their son (born in 2002). A few months later, themother started a relationship with a married man, moved into his home and began having asexual relationship with both her paramour and his wife. The father thereafter commenced thisproceeding seeking sole legal and physical custody of the child, alleging that the child had beenexposed to the mother's adult activities and inappropriately disciplined by the paramour, andobtained an order to show cause temporarily granting him this relief. Between thecommencement of this proceeding and the hearing on the petition, the mother relocated twice,first to South Dakota and then to Texas. At trial, the mother did not contest the father's requestfor sole physical custody, but instead sought to continue the joint legal custody arrangement andenjoy periodic visitation with the child in Texas. After a hearing, Family Court awarded thefather sole legal and physical custody of the child and ordered that, in light of the mother'spresent circumstances, all visitation with the child take place in New York. The mother appeals,and we affirm.[*2]
Family Court properly awarded sole legal custody to thefather. The parties do not dispute that a change of circumstances has occurred since thestipulated order of custody; the mother relocated, she agreed that the father have physicalcustody of the child, and both parties acknowledged during the hearing that they could not anddid not effectively communicate or cooperate with each other. Moreover, the mother admitted towillfully deceiving the father regarding her whereabouts during the pendency of the petition,both in failing to advise the father of her move to Texas and sending postcards to the child with aSouth Dakota return address, but with a Texas postmark. Evidence was also presented that,following the mother's relocation to South Dakota, the father was left to make all of the child'smedical and school decisions. According substantial deference to Family Court's factual findingsand credibility determinations (seeMatter of Gast v Gast, 50 AD3d 1189, 1189-1190 [2008]; Matter of Eck v Eck, 33 AD3d1082, 1083 [2006]), we find adequate support for its determination that joint legal custodywas no longer feasible and that an award of sole legal custody to the father would promote thechild's best interests (see Matter ofClupper v Clupper, 56 AD3d 1064, 1065 [2008]; Matter of Ferguson v Whible, 55 AD3d 988, 990 [2008]; Matter of Grant v Grant, 47 AD3d1027, 1028-1029 [2008]).
Nor did Family Court err in denying the mother visitation with the child in Texas. Likecustody determinations, the primary consideration in deciding issues of visitation is the bestinterests of the child (see Matter ofFrierson v Goldston, 9 AD3d 612, 614 [2004]; Matter of Rogowski vRogowski, 251 AD2d 827, 827 [1998]). Here, Family Court was concerned not withvisitation itself, but with visitation between this young boy and his mother in a distant state.Indeed, the mother was awarded visitation with the child as often as she is willing to travel toNew York, so long as she provides due notice to the father. Family Court's decision to restrictvisitation to New York was grounded upon the mother's itinerant lifestyle, the child's young ageand the mother's lack of insight into her behaviors that proved detrimental to her son.Significantly, the only person the mother knows in Texas is a "friend" with whom she lives andshares a bed, but who is a stranger to her son. Visitation under these circumstances couldperpetuate the child's behavioral issues which, according to the child's counselor,[FN*]were a direct product of the mother's previous indiscretions, such as exposing the child to adultactivities while exercising parenting time. In light of all the evidence presented, and consideringthe information gleaned from the Lincoln hearing, we find a sound and substantial basisexists to support Family Court's conclusion that visitation in Texas would not be in the child'sbest interests.
Finally, we reject the mother's argument that she did not receive the effective assistance ofcounsel. The record as a whole reveals that the mother was provided with meaningfulrepresentation throughout the proceedings. Although counsel did not file an answer to thefather's custody petition or a visitation petition on the mother's behalf, Family Court was madefully aware of and considered the mother's position on the issues of joint custody and visitation,[*3]and the mother has failed to demonstrate any actual prejudiceas a result of this claimed deficiency (see Matter of Yette v Yette, 39 AD3d 952, 954 [2007], lvdenied 9 NY3d 802 [2007]; Matterof Whitley v Leonard, 5 AD3d 825, 827 [2004]). The other omissions of which shecomplains "reflect legitimate trial strategy and, in any event, the purported effect of suchomissions is wholly speculative" (Matter of Hissam v Mackin, 41 AD3d 955, 957 [2007], lvdenied 9 NY3d 809 [2007]; seeMatter of Michael DD., 33 AD3d 1185, 1186-1187 [2006]).
Rose, Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: The mother argues that FamilyCourt should not have permitted the counselor to testify because of her friendship with thefather's current wife at the time of treatment. Such allegations of bias, however, were fullyexplored on cross-examination and go to the weight of the counselor's testimony, rather than itsadmissibility (see Matter of Nicole V., 71 NY2d 112, 122 [1987]; Matter of Khan v New York State Dept. ofHealth, 17 AD3d 938, 939 [2005]).