| Matter of Hissam v Hissam |
| 2011 NY Slip Op 03926 [84 AD3d 1513] |
| May 12, 2011 |
| Appellate Division, Third Department |
| In the Matter of Michelle Hissam, Appellant, v James Hissam,Respondent. (And Another Related Proceeding.) |
—[*1] Robert H. Ballan, Norwood, for respondent. Diane J. Exoo, Canton, attorney for the children.
Malone Jr., J. Appeals (1) from an order of the Supreme Court (Potter, J.), entered September25, 2009 in St. Lawrence County, which, among other things, granted respondent's crossapplication, in a proceeding pursuant to Family Ct Act article 6, for custody of the parties'children, and (2) from an order of said court, entered September 25, 2009, which grantedrespondent's motion to hold petitioner in violation of a prior order.
The parties are the parents of three children (born in 2002, 2004 and 2006). The familyresided together in the Village of Edwards, St. Lawrence County until January 18, 2008, whenpetitioner (hereinafter the mother) and the children vacated the marital residence. Respondent(hereinafter the father) moved out of the marital residence approximately one week later,whereupon the mother returned to the house with the children and her paramour, WilliamChurch. Subsequently, the parties each petitioned for custody of the children, and the matterswere transferred to Supreme Court, Integrated Domestic Violence part. Supreme Courtconducted trials on the custody petitions over the course of several days, and also held a hearingon a motion filed by the father, in which he alleged that the mother had willfully violated atemporary order of protection that prohibited the mother from allowing Church to have contact[*2]with the children.
Supreme Court ultimately granted sole legal and physical custody to the father and providedthe mother with supervised visitation, as can be arranged by the parties and to be supervised bythe St. Lawrence County Department of Social Services (hereinafter DSS). The court also foundthat the mother had willfully violated the temporary order of protection by allowing contactbetween Church and the children on two separate occasions, and subsequently issued an order ofprotection prohibiting the mother from having contact with the children until each attains the ageof 18, unless the contact is supervised by DSS. The mother now appeals.[FN*]
In making an initial custody determination, the children's best interests are the paramountconcern (see Matter of Lynch vGillogly, 82 AD3d 1529, 1530 [2011]). Relevant factors to consider include the abilityof each parent to provide stability for the children, each parent's home environment, and eachparent's past performance and ability to provide for the children's intellectual and emotionaldevelopment (see Matter of Omahen vOmahen, 64 AD3d 975, 976 [2009]). In reviewing custody determinations, this Courtaccords deference to the trial court's assessment of witness credibility (see Matter of Tamara FF. v John FF.,75 AD3d 688, 688-689 [2010]).
Here, Supreme Court acknowledged that each parent had engaged in inappropriate conduct intheir relationship with each other and with their children, including instances of domesticviolence, and each had mental health issues. However, the evidence established that the fatherhad addressed his issues by seeking treatment, whereas the mother had not. Further, Churchapparently has substance abuse issues and has disciplined the oldest child in an inappropriatemanner and, yet, the mother fails to acknowledge the risk of harm he poses to the children. Shepersists in maintaining a relationship with him and, in direct contravention of a court order,allows him to be around the children. The mother's actions demonstrate her willingness to placeher own interests ahead of those of her children. According deference to the court's credibilityassessments, we find no basis upon which to disturb the court's determination that the children'sbest interests are served by modifying custody in favor of the father (see Matter of Thomas v Osborne, 51AD3d 1064, 1067 [2008]).
Next, contrary to the mother's contention, the record supports Supreme Court's [*3]determination that she willfully violated the order of protection. Anassessment of the credibility of all of the witnesses who testified was crucial to the resolution ofthese matters and the court found the mother to be, at times, incredible and unable or unwilling toanswer questions directly. According deference to the court's credibility assessments, the recordcontains clear and convincing evidence that Church, the mother and one or more of the childrenwere seen together on two separate occasions (see Matter of Duane H. v Tina J., 66 AD3d 1148, 1149 [2009]).The mother's own testimony makes it clear that she was aware of the terms of the order ofprotection.
The mother's remaining contentions have been reviewed and found to be unavailing.
Mercure, J.P., Rose, Stein and McCarthy, JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote *: In July 2010, the father wascharged with sexual abuse in the second degree for allegedly improper conduct with an unrelated12-year-old child. According to the attorney for the children, based on this charge ChildProtective Services conducted an investigation pursuant to Family Ct Act § 1034, but didnot find any evidence warranting the removal of the children from the father's custody. Theattorney for the children also informs this Court that petitions for modification of custody havebeen filed by both the mother and the maternal grandparents and that trial on the mother'spetition was scheduled to begin on March 24, 2011. However, this Court is unaware of theresolution, if any, of either of those petitions and, thus, cannot say that these appeals are moot, asis argued by the attorney for the children.