| Matter of Alleyne v Cochran |
| 2014 NY Slip Op 05221 [119 AD3d 1100] |
| July 10, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 In the Matter of Mario Alleyne, Respondent, v BrittanyCochran, Appellant. (And Another Related Proceeding.) |
Emily Karr Cook, Elmira, for appellant.
John M. Scanlon, Binghamton, for respondent.
Scott B. Nadel, Binghamton, attorney for the child.
Devine, J. Appeal from an order of the Family Court of Broome County (Connerton,J.), entered November 16, 2012, which, among other things, granted petitioner'sapplication, in a proceeding pursuant to Family Ct Act article 6, for custody of theparties' child.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are theparents of a child (born in 2011). Following the establishment of the father's paternity inApril 2012, he commenced the first of these proceedings seeking custody of the childand Family Court issued a temporary order awarding the parties joint custody withprimary physical custody with the father. The mother cross-petitioned for custody in May2012. Following two days of hearings, Family Court awarded custody to the father with"reasonable visitation" to the mother as arranged by the parties. The mother nowappeals.
Initially, although Family Court's order is not clear as to the exact nature of the awardof custody to the father, we conclude that, reasonably construed, the order awarded thefather physical custody only and the parties still maintain joint legal custody over theirchild. In this regard, the mother is correct that the record does not demonstrate that theparties are incapable of working together, and Family Court's order requiring the partiesto arrange visitation between [*2]themselves indicatesthat it did not conclude that joint legal custody was unworkable.
The mother challenges the award of primary physical custody to the father and, in thealternative, the visitation provisions set forth in the order. In making an initial custodydetermination, the paramount concern is the best interests of the child, taking intoaccount such factors as " 'the parents' past performance and relative fitness, theirwillingness to foster a positive relationship between the child and the other parent, aswell as their ability to maintain a stable home environment and provide for the child'soverall well-being' " (Matter of Keen v Stephens, 114 AD3d 1029, 1030 [2014],quoting Matter of Adams vMorris, 111 AD3d 1069, 1069-1070 [2013]; accord Matter of Jarren S. v Shaming T., 117 AD3d 1109,1110 [2014]). Family Court's credibility determinations and factual findings are accordedgreat deference and we will not disturb its determination if it is supported by a sound andsubstantial basis in the record (see Matter of Jarren S. v Shaming T., 117 AD3d at1111; Matter of Keen v Stephens, 114 AD3d at 1030).
While both parents appear to be capable and caring, there exists a sound andsubstantial basis for Family Court's award of custody to the father. The father has residedin the same residence for years with his sister, his mother (hereinafter the grandmother)and her boyfriend, and is employed full time. The grandmother assists in caring for thechild, including while the father works. By contrast, the mother resided in three differentplaces in the first year of the child's life and she is unemployed and dependant on publicassistance for support. Additionally, the mother does not have a reliable supportnetwork[FN*] andshe admitted that she has been subjected to domestic violence in her current relationship.Considering the foregoing, Family Court's award of primary physical custody to thefather has a sound and substantial basis in the record and we decline to disturb it (see Matter of McLaughlin vPhillips, 110 AD3d 1184, 1186 [2013]; Matter of Gordon v Richards, 103 AD3d 929, 930-931[2013]; Matter of ChristinaMM. v George MM., 103 AD3d 935, 937 [2013]).
Turning to the issue of visitation, we are unpersuaded that Family Court's order wasinappropriate. In its order, Family Court provided that the mother may have "reasonablevisitation" with the child, which "may mean a week-long visit each month on dates asarranged with the father" and "other and further visitation . . . as the parentsmay arrange." Such flexible provisions are not impermissible (see Matter of Nicolette I. [LeslieI.], 110 AD3d 1250, 1255 [2013]), and, mindful of the trial court's "uniqueopportunity to assess the temperament of the parties" and the credibility of the witnesses(Murray v Skiff-Murray, 289 AD2d 805, 807 [2001]), "Family Court's bestinterests determination in visitation matters is ordinarily accorded great deference" (Matter of Fish v Fish, 112AD3d 1161, 1163 [2013]). The record indicates that the parties had been able tocommunicate adequately and arrange suitable visitation up to the time of the hearingsand, in fact, the flexibility granted in the order is consistent with what the mother statedshe was amenable to before the court. Accordingly, we decline to disturb the visitationprovisions of Family Court's order.
[*3] Themother's remaining arguments have been considered and found to be without merit.
Lahtinen, J.P., McCarthy, Rose and Lynch, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote *:For example, afterleaving the child with her father—who has a history of drug and alcoholabuse—for two nights, the mother was told by child protective services that thechild cannot be left with him unsupervised due to his own history with the agency.