| Matter of Joseph G. v Winifred G. |
| 2013 NY Slip Op 02115 [104 AD3d 1067] |
| March 28, 2013 |
| Appellate Division, Third Department |
| In the Matter of Joseph G., Appellant, v Winifred G.,Respondent. (And Three Other Related Proceedings.) |
—[*1] Sandra M. Colatosti, Albany, for respondent. Norbert A. Higgins, Binghamton, attorney for the children.
Mercure, J.P. Appeal from an order of the Family Court of Broome County (Pines,J.), entered February 2, 2011, which, among other things, granted respondent'sapplication, in a proceeding pursuant to Family Ct Act article 6, for custody of theparties' children.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are theunmarried parents of three children, Joseph (born in 2003) and twins Joshua and Betty(born in 2005). When the parents ceased living together, they mutually agreed to jointcustody of the children, with the father having primary physical custody of Joseph andthe mother having primary physical custody of Joshua and Betty. In August 2009, thefather commenced the first of these proceedings seeking sole custody of the children; themother cross-petitioned for custody.
In June 2010, Joseph revealed that the father had used excessive corporal punishmenton him, and the mother then commenced proceedings seeking modification of atemporary custody order and alleging that the father committed a family offense.Following hearings, Family Court determined that the father had committed a familyoffense, issued a two-year order of protection in favor of the mother and the children,and awarded the mother custody of all three children, [*2]with the father granted supervised visitation. The fathernow appeals.[FN*]
We affirm. In making an initial custody determination, Family Court must considerthe best interests of the child, including the ability of the parents to provide a stable homeenvironment, their past performance, relative fitness, and ability to provide for theoverall well-being of the child, each parent's willingness to foster a relationship with theother parent, the child's wishes, and any informal agreement between the parents (see Matter of Roberta GG. v LeonHH., 99 AD3d 1057, 1058-1059 [2012]; Jeannemarie O. v Richard P., 94 AD3d 1346, 1346-1347[2012]; Matter of Raynore vRaynore, 92 AD3d 1167, 1168-1169 [2012]). Great deference is accorded toFamily Court's credibility assessments, and its determination will not be disturbed ifsupported by a sound and substantial basis in the record (see Matter of Roberta GG. vLeon HH., 99 AD3d at 1059; Matter of Danielle TT. v Michael UU., 90 AD3d 1103,1103 [2011]).
Here, ample evidence supports Family Court's finding that the father used excessivecorporal punishment. With regard to the June 2010 incident, the mother and two otherfamily members testified that when Joseph arrived for his visit, he stated withoutprompting that the father had beaten him with a paddle, and he had welts and bruising.The bruises were subsequently observed by two child protective caseworkers, one ofwhom noted that the bruising was consistent with being hit by a paddle. Joseph also toldthe caseworkers that his father had beaten him with a paddle, giving rise to an indicatedreport for excessive corporal punishment. While the father related a different version ofevents, Family Court explicitly found him to be a less than credible witness. Notably, thefather had been the recipient of a previous indicated report for inadequate guardianship,involving physical discipline of Joseph. In addition, testimony revealed that he hadengaged in excessive physical discipline of the mother's other children while living withher.
Although both parents admitted past drug use, the mother cooperated with drug testrequests and tested negative. In contrast, although the father claimed that he no longerused drugs, he ultimately admitted to using a hallucinogenic substance on severaloccasions. Moreover, he did not comply with a caseworker's request to submit to a drugtest and, at the conclusion of her investigation, he was indicated for drug use for havingsmoked marihuana in front of one of the children.
Under these circumstances, Family Court's grant of sole custody to the mother issupported by a sound and substantial basis in the record (see Jeannemarie O. vRichard P., 94 AD3d at 1347; Matter of Raynore v Raynore, 92 AD3d at1169). Furthermore, we reject the father's contention that Family Court erred inrestricting his contact with the children to supervised visitation. Given the evidence inthe record that the father subjected Joseph to excessive corporal punishment andcontinues to engage in drug use, we cannot say that Family Court abused its discretion indetermining that supervised visitation was in the best interests of the children (see Matter of Knight v Knight,92 AD3d 1090, 1092-1093 [2012]; Matter of Beard v Bailor, 84 AD3d 1429, 1430-1431[2011]).[*3]
We have considered the father's remainingcontentions and find them to be without merit.
Rose, Lahtinen and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: The father does notchallenge the order of protection and, thus, any arguments he may have had in that regardare deemed abandoned (seeMatter of Telsa Z. [Rickey Z.—Denise Z.], 71 AD3d 1246, 1249 n 3[2010]).