| Matter of Ames v Ames |
| 2012 NY Slip Op 05571 [97 AD3d 914] |
| July 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of Stephanie R. Ames, Appellant, v Dane G. Ames,Respondent. (And Another Related Proceeding.) |
—[*1] Conboy, McKay & Bachman, Canton (Gerald J. Ducharme of counsel), forrespondent.
Stein, J. Appeal from an order of the Family Court of St. Lawrence County (Potter, J.),entered March 21, 2011, which, among other things, dismissed petitioner's application, in aproceeding pursuant to Family Ct Act article 6, for custody of the parties' child.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of adaughter (born in 2004).[FN*]When the mother filed the instant custody petition in April 2010, the parties were married, butseparated, and shared physical custody of the child. Both parties were then residing in the Townof Canton, St. Lawrence County. In July 2010, Family Court issued a temporary order grantingprimary physical custody to the mother and visitation to the father. In August 2010, the fathercounter-petitioned for joint legal custody and shared or primary physical custody of the child.Thereafter, in November 2010, the mother sought an order permitting her to relocate fromCanton to the City of Watertown, Jefferson County. Following a hearing, which took place overthe course of six days in December 2010 and January 2011, Family Court denied the mother'smotion, dismissed her petition and awarded the parties joint legal custody, with primary physicalcustody to the father and visitation to the mother. The [*2]mothernow appeals and we affirm.
Of paramount concern in any child custody dispute is the best interests of the child (see Matter of Lynch v Gillogly, 82AD3d 1529, 1530 [2011]; Moor vMoor, 75 AD3d 675, 676 [2010]; Matter of Bush v Stout, 59 AD3d 871, 872 [2009]; Matter of Robinson v Cleveland, 42AD3d 708, 709 [2007]). Factors to be considered in making a custody determinationinclude, among others, "maintaining stability for the child, the child's wishes, the homeenvironment with each parent, each parent's past performance, relative fitness, ability to guideand provide for the child's overall well-being, and the willingness of each parent to foster arelationship with the other parent" (Moor v Moor, 75 AD3d at 676 [internal quotationmarks and citations omitted]). In an initial custody proceeding, a parent's decision to relocate isalso a pertinent consideration in determining the child's best interests, although strict applicationof the factors set forth in Matter of Tropea v Tropea (87 NY2d 727, 740-741 [1996]) isnot required (see Matter of Lynch v Gillogly, 82 AD3d at 1530; Matter of Schneider v Lascher, 72AD3d 1417, 1417 [2010], lv denied 15 NY3d 708 [2010]; Malcolm v Jurow-Malcolm, 63 AD3d1254, 1255-1256 [2009]).
In this case, Family Court heard extensive testimony from each of the parties and severalother witnesses, including the child's teacher, her baby-sitter, the father's girlfriend and themother's boyfriend. The mother testified that she and the father resided together off and on from2003 until October 2009. At the time of the parties' final separation and until the July 2010temporary custody order, they shared parenting duties with respect to their daughter, as well asthe father's two sons. For the most part, it appears that they maintained a flexible visitationarrangement and were generally cooperative with one another. While there was some conflictingtestimony concerning, among other things, prior arguments between the parties, the father'smethod of disciplining the child and the child's relationship with her half brothers, Family Courtclearly resolved such conflicts in favor of the father. Indeed, in its decision, Family Court foundthat both parents were capable of providing for the child's physical, emotional and financialneeds.
With respect to relocation, the mother claimed that the reason for her move to Watertownwas that the lease on her apartment in Canton had expired, she had found better employment inthe Watertown area and was in a stable relationship with her boyfriend, with whom she wasresiding in an apartment leased in his name only. However, the record reflects that the mother didnot have secure employment in Watertown and the stability of her relationship with her boyfriendwas questionable. Nor does the mother have any extended family in the Watertown area. Thefather, on the other hand, has steady employment in Canton and plans to remain in the familyhome, in the same school district that the child has attended since she started school. Also inCanton are the child's two half brothers, with whom Family Court found she has a "loving andclose relationship," as well as the father's large extended family, including the child's cousins ofsimilar age. In addition, the evidence indicates that the father is willing and able to foster thechild's relationship with the mother (seeMatter of Zwack v Kosier, 61 AD3d 1020, 1022 [2009], lv denied 13 NY3d 702[2009]).
Based on all of the evidence, Family Court concluded that the mother's only reason forrelocating "was so that she could live with her boyfriend with whom she has no set plan for along-term future together" and that the move would not enhance the child's economic, emotionalor educational well-being. According appropriate deference to Family Court's credibilityassessments, based on its direct observation of the witnesses and evidence presented at thefact-finding hearing, we find ample support in the record for the court's determination that anaward [*3]of primary physical custody to the father was in thebest interests of the child (see Matter of Lynch v Gillogly, 82 AD3d at 1530-1531;Matter of Schneider v Lascher, 72 AD3d at 1418-1419; Matter of Zwack vKosier, 61 AD3d at 1021-1022; Matter of Robinson v Cleveland, 42 AD3d at 709).
We also reject the mother's contention that Family Court's failure to appoint an attorney forthe child warrants reversal. While appointment of an attorney for the child in a contested custodymatter remains the strongly preferred practice, "such appointment is discretionary, notmandatory" (Lips v Lips, 284 AD2d 716, 716 [2001]; see Family Ct Act §249 [a]; Moor v Moor, 75 AD3d at 678-679; Matter of Swett v Balcom, 64 AD3d 934, 936 [2009], lvdenied 13 NY3d 710 [2009]; Matterof Comins v Briggs, 25 AD3d 842, 844 [2006]). Here, the mother's counsel firstsuggested the appointment of an attorney for the child in her opening statement at thecommencement of the fact-finding hearing in December 2010. The father's attorney did not take aposition on the issue. Family Court declined to appoint an attorney for the child at that time, butstated that it would reconsider the issue if it found such appointment necessary as the testimonyunfolded. Family Court then heard testimony, not only from each of the parties, but also fromwitnesses, such as the child's teacher and baby-sitter, who had no apparent interest in theoutcome of the proceedings. These witnesses provided the court with neutral accountsconcerning the disputed issues raised by the mother with regard to, among other things, thefather's disciplinary methods, as well as certain interactions between the child and her halfbrothers. In our view, the evidence, as a whole, did not raise a substantial question about thefather's fitness, nor were there serious allegations concerning the child's emotional and physicalhealth (compare Matter of Amato vAmato, 51 AD3d 1123, 1124-1125 [2008]). Given the age of the child and the otherparticular circumstances present here, we discern no abuse of Family Court's discretion in failingto appoint an attorney for the child (see Moor v Moor, 75 AD3d at 679; Matter ofSwett v Balcom, 64 AD3d at 936; Matter of Burdick v Babcock, 59 AD3d 826, 827 [2009];Matter of Walker v Tallman, 256 AD2d 1021, 1022 [1998], lv denied 93 NY2d804 [1999]; compare Matter of Amato v Amato, 51 AD3d at 1124-1125).
We have considered the mother's remaining contentions and find them to be eitherunpreserved or without merit.
Mercure, J.P., Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: The father also has two sonsfrom a prior marriage.