| Matter of Schneider v Lascher |
| 2010 NY Slip Op 03503 [72 AD3d 1417] |
| April 29, 2010 |
| Appellate Division, Third Department |
| In the Matter of Connelly A. Schneider, Appellant, v ReneeLascher, Respondent. (And Another Related Proceeding.) |
—[*1] David E. Sonn, Earlville, for respondent. Claire Sullivan, Law Guardian, Monticello.
Garry, J. Appeal from an order of the Family Court of Chenango County (Sullivan, J.),entered February 25, 2009, which, among other things, dismissed petitioner's application, in twoproceedings pursuant to Family Ct Act article 6, for custody of the parties' child.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents ofone child (born in 2004). The parties resided in New Jersey until approximately six months afterthe child's birth, when they relocated to the Town of Otselic, Chenango County. In 2008, theparties' relationship dissolved and the mother returned to New Jersey with the child. The fathercommenced this proceeding seeking custody of the child and, pending a hearing, Family Courtentered a temporary custody order under which the parties alternated physical custody of thechild every two weeks. The mother petitioned for modification of the temporary order.Following the hearing, the court awarded custody to the mother, with liberal visitation for thefather, and retained jurisdiction for 18 months. The father appeals.
As both parties acknowledge, Family Court was not required to engage in a strict applicationof the relocation factors established in Matter of Tropea v Tropea (87 NY2d 727[*2][1996]) in this initial custody determination, although the mother'srelocation is "a very important factor among the constellation of factors to be considered inarriving at a best interests determination" (Ostrander v McCain, 68 AD3d 1480, 1481 [2009] [internalquotation marks and brackets omitted]; see Malcolm v Jurow-Malcolm, 63 AD3d 1254, 1255 [2009]). Wedisagree with the father's contention that Family Court failed to give this factor adequateconsideration. The court found that despite spending the majority of her life at the father'sresidence, the child's most meaningful family contacts were in New Jersey, where most of bothparents' extended families reside, and where the mother now resides with her family—inthe same home the family had shared prior to moving to New York. To the extent possible, thecourt attempted to minimize the detrimental effect of distance on the father's relationship withthe child and his opportunities for regular and meaningful contact by awarding him liberalvisitation, including extended visits during summer and school vacations as well as time with thechild in New Jersey when he visits relatives and friends in the area (see Malcolm vJurow-Malcolm, 63 AD3d at 1257-1258; Matter of Hills v Madrid, 57 AD3d 1175, 1177 [2008]). We furthernote that the court specifically retained jurisdiction for a period encompassing two summers soas to be available if necessary to monitor the success of this schedule.
The custody award was sufficiently supported by analysis of the child's best interests. "[T]heoverriding consideration in determining custody is always the best interests of the child" (Matter of Eck v Eck, 33 AD3d1082, 1083 [2006]; see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]). Thisassessment must be based on a careful analysis of all the circumstances, including " 'maintainingstability for the child[ ], the child[ ]'s wishes, the home environment with each parent, eachparent's past performance and relative fitness, each parent's ability to guide and provide for thechild[ ]'s overall well-being and the willingness of each to foster a positive relationship betweenthe child[ ] and the other parent' " (Matter of Grant v Grant, 47 AD3d 1027, 1028-1029 [2008],quoting Matter of Kilmartin vKilmartin, 44 AD3d 1099, 1102 [2007]). A court is not required to state explicitly that itis engaging in a best interest analysis when the determination is properly based on considerationof these factors and on the needs and best interests of the child.
Here, Family Court initially acknowledged the difficulty of choosing between the parents, asin the court's view, both were loving parents with strong relationships with their child, whoshared parenting responsibilities before their relationship dissolved and were each capable ofraising her successfully. In addition to noting the strengths of each parent, the court expresslyfound certain "gaps" or weaknesses in the testimony each presented. For example, the father hadplanned more effectively for the child's speech therapy needs than had the mother; however,based upon all the testimony, the court expressed confidence that the mother would address thisneed responsibly when the child was in her care. The record indicates that either parent canprovide the child with stable, suitable housing and can spend significant time with her. The courtnoted that the mother's full-time employment in the same day care/pre-kindergarten facilitywhere she intends to enroll the child will permit her to spend time with the child during workinghours.[FN1]The mother was found to use her time with the child to engage in more interactive social andeducational activities, such as reading aloud, than did the father, and she made greater efforts[*3]than the father to communicate with the child by telephonewhen she was not in her care.[FN2]According the appropriate " 'great deference' " to the court's opportunity to hear the testimonyand assess the credibility of witnesses, we find a sound and substantial basis for its conclusionsin this record (Matter of Marchand vNazzaro, 68 AD3d 1216, 1217 [2009], quoting Matter of Barndollar vBarndollar, 234 AD2d 858, 859 [1996]) and conclude that the custody award in this difficultcase was based upon careful consideration of the appropriate factors and the child's best interests(see Matter of Bjork v Bjork, 58 AD3d 951, 954 [2009], lv denied 12 NY3d 708[2009]; Matter of Kilmartin v Kilmartin, 44 AD3d at 1102).
Finally, Family Court acknowledged that requiring the father to do the majority of thedriving to the exchange location in New Jersey was difficult for him, particularly in light of hisknee injury. However, this was expressly based upon the parties' successful past practice, thedemands imposed on the mother's time by her full-time employment schedule, and the father'sunemployment. Again noting that the court retained jurisdiction for the express purpose ofmonitoring the success of visitation arrangements, we find no reason to disturb thisdetermination.
Peters, J.P., Lahtinen, Malone Jr. and Stein, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: The father is unemployed due toan injury sustained during military service that does not prevent him from caring for the child.
Footnote 2: Although not dispositive (see e.g. Matter of Kowatch v Johnson,68 AD3d 1493, 1496 n 2 [2009], lv denied 14 NY3d 704 [2010]), we note that thechild's separate Law Guardians at trial and on appeal support the custody determination. Whileacknowledging the difficulty of choosing between two competent, loving parents, the LawGuardian in Family Court opined that the mother's circumstances presented a "slight" advantageto the child.