| Matter of Darrow v Darrow |
| 2013 NY Slip Op 03885 [106 AD3d 1388] |
| May 30, 2013 |
| Appellate Division, Third Department |
| In the Matter of William I. Darrow, Respondent, v AmberL. Darrow, Appellant. (Proceeding No. 1.) In the Matter of Kim M. Hibbard,Respondent, v Amber Darrow, Appellant, et al., Respondent. (Proceeding No.2.) (And Another Related Proceeding.) |
—[*1] Petrick & Kapur, Endicott (David E. Kapur of counsel), for William I. Darrow,respondent. Richard J. Grace, Binghamton, for Kim M. Hibbard, respondent. Judith E. Osburn, Binghamton, attorney for the children.
Egan Jr., J. [*2]Appeals from two decisions and twoorders of the Family Court of Broome County (Pines, J.), entered November 22, 2011,which, among other things, granted petitioners' applications, in proceeding Nos. 1 and 2pursuant to Family Ct Act article 6, for custody of the subject children.
Respondent Amber L. Darrow (hereinafter the mother) is the mother of threechildren—Nathaniel (born in 1998), Christian (born in 2001) and Gianna (born in2005). Petitioner William I. Darrow (hereinafter Darrow), whom the mother married in2006, is the father of Nathaniel and Gianna. Respondent Matthew J. Hibbard (hereinafterHibbard) is the father of Christian, and petitioner Kim M. Hibbard (hereinafter thegrandmother) is Christian's paternal grandmother. The mother and Darrow lived togetherwith all three children until early 2010 when, in response to the mother's allegedinfidelity, Darrow asked her to leave the marital residence.
The parties appear to have enjoyed a reasonably amicable relationship until lateAugust 2010, when the Broome County Department of Social Services (hereinafter DSS)advised the mother that she was the subject of a report of suspected child abuse ormaltreatment. In response, Darrow commenced proceeding No. 1 seeking custody ofNathaniel and Gianna, and Family Court (Connerton, J.) temporarily awarded the motherand Darrow joint legal custody of the children with primary physical custody toDarrow.[FN1]Additionally, the grandmother commenced proceeding No. 2 seeking custody ofChristian, and Family Court (Brockway, J.) granted her temporary custody of the childwith supervised visitation to the mother and visitation to Hibbard as outlined in a June2004 order.[FN2]Shortly thereafter, Hibbard commenced proceeding No. 3 seeking sole custody ofChristian. Approximately nine months later, Hibbard amended his petition and requestedthat he and the grandmother be granted joint custody. In the interim, DSS advised FamilyCourt that the report against the mother would be indicated for inadequateguardianship.[FN3]
Following separate fact-finding and Lincoln hearings, Family Court awardedsole legal and physical custody of Nathaniel and Gianna to Darrow and weekendvisitation to the mother. As to Christian, Family Court found that extraordinarycircumstances existed and awarded the grandmother and Hibbard joint legal custody ofthe child with primary physical custody to the [*3]grandmother and weekend visitation to themother.[FN4]These appeals by the mother ensued.[FN5]
We turn first to Family Court's decision to award sole custody of Nathaniel andGianna to Darrow. The primary concern in any custody matter is, of course, the bestinterests of the children and, to that end, Family Court must give due consideration to,among other things, "each parent's ability to furnish and maintain a suitable and stablehome environment for the child[ren], past performance, relative fitness, ability to guideand provide for the child[ren]'s overall well-being and willingness to foster a positiverelationship between the child[ren] and the other parent" (Matter of Melissa WW. v ConleyXX., 88 AD3d 1199, 1200 [2011], lv denied 18 NY3d 803 [2012]; see Matter of Ames v Ames,97 AD3d 914, 914-915 [2012], lv denied 20 NY3d 852 [2012]; Matter of Raynore v Raynore,92 AD3d 1167, 1168 [2012]). In view of Family Court's ability to observe thewitnesses' testimony first hand, its credibility determinations—if supported bysound and substantial evidence in the record as a whole—will not be disturbed(see Matter of Raynore v Raynore, 92 AD3d at 1168; Matter of Baker v Baker, 82AD3d 1462, 1462 [2011]).[FN6]
The mother initially contends that Nathaniel's and Gianna's interests would best beserved by an award of joint custody. Although an award of joint custody "is anaspirational goal in every custody matter" (Matter of Melissa WW. v ConleyXX., 88 AD3d at 1200 [internal quotation marks omitted]), such an award is notfeasible where, as here, the parties' relationship and history evidences an inability to workand communicate with one another in a cooperative fashion (see Matter of Michael GG. vMelissa HH., 97 AD3d 993, 994-995 [2012]; Jeannemarie O. v Richard P.,94 AD3d 1346, 1347 [2012]).
As for Family Court's award of sole custody to Darrow, the record reflects thatDarrow [*4]continues to live in the same three-bedroomhouse where Nathaniel and Gianna resided for most of their lives and that each child hashis or her own room. Additionally, Darrow has been employed as a refrigeration and airconditioning technician for the past 12 years, provides health insurance for the childrenthrough his employer and schedules and takes the children to their medical appointments.Although Darrow and the mother "shared" custody of the children between April 2010and August 2010, Darrow testified that the children were with him the majority of thetime and that he made efforts to coordinate visits between the children and Christian. Onthe other hand, the mother resided in a number of locations after moving out of themarital residence and, at the time of the hearing, was living in an apartment with a friend;the mother's name was not on the lease, she was not paying any rent and all three childrenwould need to share the same bedroom. Additionally, the mother, who was not employedwhile living with Darrow, thereafter worked sporadically in a number ofpositions—most recently as a licensed hairdresser. Moreover, even assuming thatthe mother was the primary caregiver prior to her separation from Darrow, hersubsequent lifestyle could fairly be characterized as unstable, chaotic and generally notconducive to effectively parenting children. On balance, and upon consideration of allthe relevant factors, we are of the view that Darrow is the parent most capable ofproviding a safe, stable and secure home environment for the children. Accordingly, wefind that Family Court's decision to award sole legal and physical custody of Nathanieland Gianna to Darrow is supported by a sound and substantial basis in the record.
Turning to custody of Christian, "there is no question that a biological parent has aclaim of custody of his or her child, superior to that of all others, in the absence ofsurrender, abandonment, persistent neglect, unfitness, disruption of custody over anextended period of time or other extraordinary circumstances. That said, the biologicalparent may be supplanted where he or she engages in gross misconduct or other behaviorevincing an utter indifference and irresponsibility relative to the parental role" (Matter of Rodriguez vDelacruz-Swan, 100 AD3d 1286, 1288 [2012] [internal quotation marks andcitations omitted]; see Matter ofJames NN. v Cortland County Dept. of Social Servs., 90 AD3d 1096,1097-1098 [2011]; Matter ofKowalsky v Converse, 79 AD3d 1310, 1311 [2010]).
After the mother moved out of Darrow's home in early 2010, she lived in a series ofresidences, during which time she shared her living quarters with any number ofmen—one of whom was a former heroin user. Although the mother's multipleresidences and association with questionable companions is not—standingalone—sufficient to render her an unfit parent (see Matter of Burton v Barrett, 104 AD3d 1084, 1086[2013]), her various moves caused Christian to change schools twice within a shortperiod of time,[FN7]and the record is replete with references to the unsafe and unsanitary conditions existingat the mother's residences—including, but not limited to, multiple brokenwindows, accumulated garbage and cramped living quarters littered with feces from theapproximately 13 dogs and puppies that the mother then was housing. To our analysis,the level of instability existing in the mother's life, as evidenced by her sporadicemployment and precarious housing situation, is indicative of the mother's overall patternof [*5]placing her own interests and personalrelationships ahead of her children—particularly with respect toChristian—and demonstrates a marked lack of parental responsibility. The recordalso raises serious concerns regarding the mother's temper and use of corporalpunishment as a means of discipline. In short, based upon our review of the record as awhole, including the transcripts of the underlying Lincoln hearings, andaccording due deference to Family Court's credibility determinations (see Matter ofBaker v Baker, 82 AD3d at 1462), we are satisfied that Family Court's finding ofextraordinary circumstances as to the grandmother is supported by a sound andsubstantial basis in the record. We are equally persuaded that, in light of the extensivetravel associated with Hibbard's employment,[FN8]it was in Christian's best interests to award joint legal custody to the grandmother andHibbard with primary physical custody to the grandmother (see Matter of Rodriguezv Delacruz-Swan, 100 AD3d at 1289).
Finally, we cannot say that Family Court abused its considerable discretion infashioning the respective visitation schedules—particularly given the instabilityexisting in the mother's life at the time those visitation schedules were crafted. Themother's remaining contentions, to the extent not specifically addressed, have beenexamined and found to be lacking in merit.
Lahtinen, Stein and McCarthy, JJ., concur. Ordered that the appeals from thedecisions are dismissed, without costs. Ordered that the orders are affirmed, withoutcosts.
Footnote 1: The mother thereafterfiled a petition seeking modification of this temporary order.
Footnote 2: Insofar as is relevanthere, the June 2004 order, of which Family Court took judicial notice, awarded themother sole custody of Christian and granted Hibbard various visitation periods,including every other weekend.
Footnote 3: Following completionof an investigation pursuant to Family Ct Act § 1034 in November 2010, DSSasked that it be "taken off notice" with respect the pending custody applications. DSSfurther indicated that the mother's "case ha[d] been opened for services," but it is unclearwhat, if any, services thereafter were provided.
Footnote 4: The visitationprovisions in each order were identical, granting the mother visitation with the childrenon alternate Saturdays from 10:00 a.m. to 5:00 p.m., together with "such other andfurther visitation as to which the parties may agree."
Footnote 5: To the extent that themother appeals from both the November 2011 orders and the underlying decisions, wenote that Family Court's decisions are not appealable papers (see CPLR 5512 [a])and, therefore, the mother's appeals therefrom are dismissed (see Matter of Palmer vPalmer, 284 AD2d 612, 613 [2001]). Additionally, we observe that although FamilyCourt held separate hearings on the respective custody applications, the court tookjudicial notice of the testimony offered in each proceeding.
Footnote 6: We note in passing thatthe mother, Hibbard and Darrow appear to have an extensive history with BroomeCounty Family Court dating back more than 10 years. The June 2004 order previouslydiscussed (see note 2, supra) resulted in a modification of a prior custodyorder with respect to Christian, which testimony suggests was issued in or about 2002.The June 2004 order also contains a reference to the fact that the mother, then living withDarrow, had—at some prior undisclosed point in time—"lost custody of herson" (presumably Nathaniel) to Darrow.
Footnote 7: According to Hibbard,after the mother left Darrow and moved in with another man, she removed Christianfrom his original school and placed him in another school in a different school district.Two months later, when her romantic relationship failed, the mother moved again andChristian returned to his original school.
Footnote 8: Hibbard was employedby Rock Horse Suzuki, a motorcycle racing team based in California, and his job, whichincluded "driv[ing] the transporter from race to race and prepar[ing] the truck for eachevent," necessarily entailed significant travel for most of the calendar year.