| Moor v Moor |
| 2010 NY Slip Op 05823 [75 AD3d 675] |
| July 1, 2010 |
| Appellate Division, Third Department |
| Gideon A. Moor, Respondent, v Laurie M. Blancher Moor,Appellant. |
—[*1] Schlissel, Ostrow & Karabatos, P.L.L.C., Garden City (Stephen W. Schlissel of counsel), forrespondent. Daniel Gartenstein, Kingston, attorney for the child.
Peters, J.P. Appeal from an order of the Supreme Court (O'Connor, J.), entered April 28,2009 in Ulster County, which, among other things, awarded plaintiff custody of the parties' child.
Plaintiff (hereinafter the father) and defendant (hereinafter the mother) were married in 2004and are the parents of a daughter (born in 2005). Within weeks of her birth, the couple beganexperiencing marital difficulties, stemming from the father's growing concern about the mother'smental health. In January 2006, when the child was just five weeks old, the mother vacated thecouple's marital residence in Ulster County and traveled to Nassau County with the child. Thefather immediately initiated a proceeding in Ulster County Family Court requesting joint custodyof the child and an order prohibiting the mother from removing the child from the county.Family Court issued an interim order restricting the mother from leaving the state with the childand set a prompt return date.
A flurry of litigation between the parties ensued. As relevant to this appeal, within days ofthe mother's departure, each party commenced an action for divorce in Supreme Court, the fatherin Ulster County and the mother in Nassau County, each moving, by order to show cause, for anaward of custody of the child. The actions were consolidated and venue was placed in UlsterCounty (see Moor v Moor, 39AD3d 507 [2007]). The mother was initially granted [*2]temporary custody of the child, with supervised visitation to thefather, and remained in Nassau County during the pendency of the action. Throughout the courseof the litigation, the father sought and was awarded increased visitation with the child. BySeptember 2007, when the child was 21 months old, the parties had stipulated to a temporarycustody and visitation schedule which provided generous unsupervised and overnight visitationto the father. The parties agreed to proceed to trial on the issues of custody and visitation only.Following a 29-day trial, Supreme Court awarded the father sole custody of the child, withliberal visitation to the mother on a set schedule to continue at least until the child beganprekindergarten. The mother appeals.
The principal concern in any child custody dispute is the best interests of the child (seeEschbach v Eschbach, 56 NY2d 167, 171 [1982]; Matter of Melissa K. v Brian K., 72 AD3d 1129, 1131 [2010]), tobe determined "by reviewing such factors as 'maintaining stability for the child, the child'swishes, the home environment with each parent, each parent's past performance, relative fitness,ability to guide and provide for the child's overall well-being, and the willingness of each parentto foster a relationship with the other parent' " (Kaczor v Kaczor, 12 AD3d 956, 958 [2004], quoting Matter of Smith v Miller, 4 AD3d697, 698 [2004]; see Matter ofTorkildsen v Torkildsen, 72 AD3d 1405, 1406 [2010]). We accord great deference toSupreme Court's factual findings and will not disturb the court's custodial determination so longas it is supported by a sound and substantial basis in the record (see Matter of Torkildsen vTorkildsen, 72 AD3d at 1406; Matter of Marchand v Nazzaro, 68 AD3d 1216, 1217 [2009]).
Initially, we reject the mother's contention that Supreme Court distorted the proof submittedby the parties at the trial and ignored relevant evidence in reaching its custody determination. Inits thorough, well reasoned 46-page decision, the court addressed the parties' respective strengthsand weaknesses with regard to each of the relevant factors and fully explained its reasons forrejecting the recommendation of the court-appointed expert (see Matter of Melissa K. vBrian K., 72 AD3d at 1132), which is not determinative in a custody case (see Matter ofBates v Bates, 290 AD2d 732, 733 [2002]; Matter of Aldrich v Aldrich, 263 AD2d579, 579 [1999]). While there was conflicting evidence on some issues—many of whichwere irrelevant to the best interests of the child determination—we accept SupremeCourt's credibility determinations and conclude that the court's custody determination has asound and substantial basis in the record (see Matter of Marchand v Nazzaro, 68 AD3dat 1217).
Neither party disputes that, in light of the extreme animosity between them, an award of jointlegal custody would not have been in the child's best interests (see Matter of Cool v Malone, 66AD3d 1171, 1173 [2009]; Matterof Yette v Yette, 39 AD3d 952, 953 [2007], lv denied 9 NY3d 802 [2007]). Therecord reflects that the father can provide a stable home life and appropriate living environmentfor the child. He has resided in the same home in Ulster County for approximately 10 years inthe community where he has spent most of his life and where he has a well-established socialnetwork and family support. He maintained a flexible work schedule to allow for visitation withthe child during the pendency of this matter and expressed his willingness to adapt his lifestyle tocare for the child full time should he be awarded sole custody. The record is replete withtestimony attesting to the father's devotion to and concern for the child, as well as his dailyroutine and interactions with her during visitation. Despite evidence that the father sufferedanger and frustration after the mother took the child from the marital home, the father's relativefitness as a parent was not significantly called into question by the evidence submitted at trial.Importantly, Supreme Court credited the father's testimony that, were he to become the primarycustodial parent, he would allow the mother free and frequent access to the child and, finding nobasis in the record to disagree, we decline to disturb the court's [*3]determination in that regard (see Matter of Smith v Smith, 61 AD3d 1275, 1277 [2009]).
By contrast, the mother presented evidence that she resides in a home owned by her father inNassau County where she has substantial support from her family and friends and where thechild is engaged in various social and educational activities, yet she presented no witnesses whocould attest to her home environment, the stability that she provides to the child or her dailyroutine or interactions with the child. Although the mother testified that she believed it importantfor the child to have a good relationship with the father and affirmed that she would cooperate inany way to facilitate that relationship, she prevented the father from having contact with thechild for five weeks after her move to Nassau County, misrepresented that she was exclusivelybreast feeding the child in order to limit the father's visitation time and opposed many of thefather's requests for increased visitation.
Additionally, "[a]lthough not determinative, the mental health of a parent is necessarilyrelevant in every custody/visitation proceeding" (Matter of Armstrong v Heilker, 47 AD3d 1104, 1105 [2008];see e.g. Matter of Bates v Bates, 290 AD2d at 733-734). Here, the mother's relativefitness was called into question by evidence that she has never fully acknowledged her longhistory of anxiety and depression and has not sought regular consistent treatment forit.[FN*]We agree with Supreme Court that the mother's anxiety and depression, if left untreated, couldpotentially cause harm to the child and that the record lacks evidence that the mother is aware ofthis risk or is taking adequate steps to prevent future risk to the child. Thus, we decline to disturbSupreme Court's finding that the best interests of the child tip the scale in favor of awardingcustody to the father.
Finally, the mother argues that Supreme Court abused its discretion in failing to sua sponteappoint an attorney for the child to represent her interests in the protracted litigation between herparents. This argument is foreclosed by the mother having taken a contrary position beforeSupreme Court when she affirmatively opposed the father's pretrial motion for the appointmentof an attorney for the child (see e.g.Mikkelson v Kessler, 50 AD3d 1443, 1444 [2008]; Maas v Cornell Univ., 253AD2d 1, 5 [1999], affd 94 NY2d 87 [1999]). In any event, while the recommendation ofan attorney for the child may be extremely helpful in assessing the best interests of a child, theappointment of such attorney "is not statutorily mandated in contested custody proceedings" (Matter of Amato v Amato, 51 AD3d1123, 1124 [2008]) and is a matter committed to the sound discretion of Supreme Court (see Matter of Swett v Balcom, 64AD3d 934, 936 [2009], lv denied 13 NY3d 710 [2009]). Given the very young ageof the child and the absence of apparent prejudice arising from the failure to appoint an attorneyto represent her, we discern no abuse of discretion (see Matter of Burdick v Babcock, 59 AD3d 826, 827 [2009]).
We have considered the mother's remaining contentions and find them to be without merit.
Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the order is affirmed, without costs.
Footnote *: Notably, the mother wasunaware of her diagnosis, having never requested this information.