| Matter of Gordon v Richards |
| 2013 NY Slip Op 00957 [103 AD3d 929] |
| February 14, 2013 |
| Appellate Division, Third Department |
| In the Matter of Rozann D. Gordon, Respondent, v JasonM. Richards, Appellant. |
—[*1] John Cadore, Binghamton, for respondent. Norbert Higgins, Binghamton, attorney for the child.
Stein, J. Appeal from an order of the Family Court of Broome County (Connerton,J.), entered April 25, 2011, which, among other things, granted petitioner's application, ina proceeding pursuant to Family Ct Act article 6, for custody of the parties' child.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are theparents of a daughter (born in 2008). In August 2010, the mother filed a petition seekingcustody of the daughter.[FN*]Following a fact-finding hearing, Family Court awarded the parties joint legal custody,with primary physical custody to the mother and specified parenting time to the father.The father now appeals, arguing that Family Court should have awarded him primaryphysical custody of the child.
We affirm. The paramount concern in any custody determination is the child's bestinterests (see Matter of King vBarnes, 100 AD3d 1209, 1210 [2012]; Hughes v Gallup-Hughes, [*2]90 AD3d 1087, 1089 [2011]; Matter of Lynch v Gillogly, 82AD3d 1529, 1530 [2011]). An initial custody determination requires considerationof, among other things, the parents' ability to provide a stable home environment andprovide for the child's overall well-being (see Matter of Bambrick v Hillard, 97 AD3d 921, 921-922[2012]; Matter of Raynore vRaynore, 92 AD3d 1167, 1168 [2012]; Matter of Rundall v Rundall, 86 AD3d 700, 701 [2011]).
In resolving the instant custody dispute, Family Court noted that the mother was "notperfect," citing various deficiencies including, among other things, her admission that sheoccasionally smoked marihuana with her boyfriend and the fact that she had anotherchild from a previous relationship of whom she did not have custody. However, onbalance, the court found that the mother was better suited to have primary physicalcustody. Family Court's conclusion that it was in the child's best interests to primarilyreside with the mother was based, in large part, on its finding that the mother has beenthe primary caretaker for most of the child's life and is best able to provide stability forthe child. In this regard, the mother was sharing a home with her boyfriend, hismother—a licensed practical nurse—and his mother's friend, all of whomassisted the mother in caring for the child. While the mother was not working, she wasreceiving public assistance and food stamps, as well as financial assistance from herboyfriend, who was employed.
Family Court noted that the lifestyle of the father—who was alsounemployed—was "more chaotic" than the mother's lifestyle. The court alsoexpressed concern regarding the father's criminal history—including two periodsof incarceration—and evidence of his regular drug use, as well as a history ofselling illegal drugs and of violence toward others. In addition, the mother claimed thatthe father had threatened her, and these allegations were, to some extent, verified by thefather. According appropriate deference to Family Court's credibility assessments, wefind a sound and substantial basis in the record to support the decision that joint custody,with primary physical custody to the mother, is in the child's best interests (see Matter of Barker vDutcher, 96 AD3d 1313, 1314 [2012]).
Peters, P.J., Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: The father filed a crosspetition for custody, which was dismissed without prejudice when the father failed toappear on the initial court date regarding such petition.