| Matter of Lynch v Gillogly |
| 2011 NY Slip Op 02502 [82 AD3d 1529] |
| March 31, 2011 |
| Appellate Division, Third Department |
| In the Matter of April E. Lynch, Respondent, v Douglas N. GilloglyJr., Appellant. (And Another Related Proceeding.) |
—[*1] Susan C. Kirby, Ithaca, for respondent. Lenore M. LeFevre, Cortland, attorney for the child.
Spain, J.P. Appeal from an order of the Family Court of Tompkins County (Rowley, J.),entered January 6, 2010, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, for custody of the parties' child.
The parties, the unwed parents of a daughter (born in 2006), became involved in a romanticrelationship while respondent (hereinafter the father), a resident of Tompkins County, was livingout of town and working on a construction project in the Village of Dolgeville, Herkimer County.At that time, the father was also involved in a live-in relationship with a woman in the Village ofFreeville, Tompkins County; petitioner (hereinafter the mother) was aware of that relationship. Inearly 2002, when the construction project was almost completed, the father—in order tocontinue to pursue his relationship with the mother—persuaded her to move with her twoolder daughters (born in 1994 and 1998) to Freeville, promising to provide them with a home andfinancial assistance. He bought her a house and supported her and her children both emotionallyand financially, regularly staying at their home while continuing to also reside with his live-incompanion who he led to believe that he was out of town on business during his absences.Between 2002 and 2006, the father was supporting both the home of the mother, with whom hecontinued his romantic relationship, and that of his live-in companion, [*2]who he married after she became pregnant with their son (born in2005). The mother became pregnant with the subject child in 2006 and, soon after her birth, themother and father's relationship became strained. In 2009, the mother commenced the instantproceeding seeking joint custody and physical placement of the child with her and permission toreturn to Dolgeville with the child, 2½ hours away. The father thereafter cross-petitionedfor sole custody and the mother subsequently amended her petition, requesting sole custody.Following a fact-finding hearing, Family Court granted the mother sole custody and approved herrelocation; the father was granted specific liberal parenting time, including alternate weekends,three-day weekends when the child is not in school and alternating full weeks during the summer.The father now appeals.
Family Court properly granted sole custody to the mother and permitted her requestedrelocation. In making an initial custody determination, the overriding priority is the best interestsof the child (see Matter of Schneider vLascher, 72 AD3d 1417, 1418 [2010], lv denied 15 NY3d 708 [2010]; Matter of Richardson v Alling, 69AD3d 1062, 1063 [2010]). In undertaking this best interests analysis, "Family Court wasrequired to consider various factors, including how the decision would impact on the child[ ]'sstability, the home environment of both parents, each parent's willingness to foster a relationshipwith the other parent, and their past performance and ability to provide for the [child's] overallwell-being" (Matter of White vWhite, 77 AD3d 1073, 1074 [2010] [internal quotation marks and citations omitted]; see Matter of Clupper v Clupper, 56AD3d 1064, 1065-1066 [2008]). In addition to this nonexhaustive list, all other relevantfactors must be considered (see Matter of Troy SS. v Judy UU., 69 AD3d 1128, 1131[2010], lv denied 14 NY3d 912 [2010]; Matter of Solomon v Long, 68 AD3d 1467, 1468 [2009]),including a parent's decision to relocate (see Malcolm v Jurow-Malcolm, 63 AD3d 1254, 1255-1256 [2009])and the effect an award of custody would have on the child's relationship with the noncustodialparent (see Matter of Lukaszewicz v Lukaszewicz, 256 AD2d 1031, 1033 [1998]). Asthis is an initial custody determination, it is not necessary to adhere to a strict application of therelevant factors to be considered in a potential relocation as enunciated in Matter of Tropea vTropea (87 NY2d 727 [1996]; seeOstrander v McCain, 68 AD3d 1480, 1481 [2009]; Furman v Furman, 298AD2d 627, 628-629 [2002], lv dismissed and denied 99 NY2d 575 [2003]), and FamilyCourt's determination should be accorded deference unless it lacks a sound and substantial basisin the record (see Matter of Burdick vBabcock, 59 AD3d 826, 827 [2009]; Matter of De Losh v De Losh, 235 AD2d851, 853 [1997], lv denied 89 NY2d 813 [1997]).
Here, the mother has always been the subject child's primary caregiver, and the child hasalways lived with her mother and older sisters, with the father coming and going between his twohouseholds. However, the record indicates that the mother has a history of alcohol abuse andalcohol-related driving convictions, the second of which was a conviction for driving whileintoxicated that occurred after the child was born.[FN*]There is also some evidence that the mother may suffer from bouts of untreated depression. Therecord also shows that the father, after his relationship with the mother ended, greatly reduced hisfinancial support, began secretly tape-recording his interactions with the mother as potentialevidence against her, and continued to do so even after his attorney advised him to stop.Moreover, the father admitted to grossly [*3]deceiving his wifefor a protracted period of time about his continuing affair and the expected child with the mother.Despite these and other shortcomings, the record indicates that both parties love and can providefor the child (see Matter of Robinson v Davis, 58 AD3d 1041, 1042 [2009]). In addition,the child has loving relationships with both of the mother's other daughters, the father's youngson, the father's parents and her large extended family in Dolgeville. Considering all of therelevant facts, and deferring to Family Court's assessment of credibility and its determination, wefind a sound and substantial basis in the record for its conclusion that an award of sole custody tothe mother is in this young child's best interests.
Turning to the mother's proposed return to Dolgeville, evidence points toward an improvedeconomic and emotional environment for the child and her mother upon relocation. Testimony atthe fact-finding hearing indicates that the father financially supported the mother in Freevillefrom 2002 until 2007, shortly after the child's birth, providing the mother with a place to live,assisting with household tasks and paying for, among other things, her fuel, car and utilities.However, later in 2007, after the parties' relationship deteriorated, the father's financial assistancesignificantly decreased, resulting in the mother and her children losing their home and vehicleand causing her to file for bankruptcy.
By comparison, Dolgeville is where the mother grew up and where she lived in 2002, whenthe father persuaded her to move to Freeville. While the father characterizes the environmentquite differently, pointing out legitimate concerns about some members of the mother's family,the record supports Family Court's finding that the mother's social and economic situation inFreeville was only worsening, as was the relationship between the parties. By contrast, were sheto move back to Dolgeville, the mother and child would have a viable support network thatwould be able to help care for the child while the mother is at work, housing and employment, allof which would provide a more stable home life for the child. In addition, the mother expected toobtain her Bachelor's degree before the move, which would greatly enhance her ability to find ajob and to earn a substantially greater income. Although this determination results in the childresiding a significant distance away from the father, the arrangement should not significantlyimpede his ability to foster a close and loving relationship with his daughter, especially given theamount of parenting time that he was awarded.
Finally, contrary to the father's argument, Family Court did not merely adopt the position ofthe attorney for the child without due consideration. While Family Court's ruling in the instantcase was somewhat consistent with the attorney for the child's position, nothing in the recordsuggests that the court did not properly consider the appropriate factors in rendering itsdetermination (see Matter of Card vRupert, 70 AD3d 1264, 1265 [2010]; Matter of Kilmartin v Kilmartin, 44 AD3d 1099, 1102 [2007]) noris there any evidence suggesting that the usual deference to the court should not be accorded (see Matter of Wentland v Rousseau, 59AD3d 821, 823 [2009]). As the court noted, "both parents have brought this dilemma uponthemselves." Moreover, the father's decision to carry on a double life has reaped predictabledeleterious consequences for both families and thrust upon the courts the unenviable task ofsorting out the resulting tangled mess in a manner that puts the needs of the child first.
Lahtinen, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, without costs.
Footnote *: The mother testified that sherarely drinks anymore and has completed all of the dispositional requirements of her sentence,including a drinking and driving program and six sessions with a counselor.