| Matter of Brown v Akatsu |
| 2015 NY Slip Op 01508 [125 AD3d 1163] |
| February 19, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Edward A. Brown, Appellant, v LindaH. Akatsu, Respondent. (And Another Related Proceeding.) |
Poissant, Nichols, Grue & Vanier, PC, Malone (Luke J. Babbie of counsel), forappellant.
Conboy, McKay, Bachman & Kendall, LLP, Canton (Gerald J. Ducharme ofcounsel), for respondent.
Christopher R. Curley, DeKalb Junction, attorney for the child.
Garry, J. Appeal from an order of the Family Court of St. Lawrence County (Morris,J.), entered June 14, 2012, which, among other things, granted respondent's application,in two proceedings pursuant to Family Ct Act article 6, for custody of the parties'child.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are theparents of a child (born in 2010). The father also has an older child from a previousmarriage. The mother and father lived together with both children until May 2012, atwhich point the mother took the subject child to California without notifying the fatheror advising him of the child's whereabouts. The father then commenced the first of theseproceedings seeking custody of the child. In September 2012, the father's investigatorlocated the mother and child in California and served the mother with the father's petitionand an order to show cause directing her to return to New York with the child. She did sopromptly, answered the father's petition, and commenced the second of these [*2]proceedings seeking custody of the child.[FN1] Following a fact-findinghearing, Family Court awarded sole legal and primary physical custody to the mother,with shared parenting time for the father pursuant to a schedule by which the child willspend alternate weeks with each parent until he enters school and, thereafter, if theparents do not reside in the same school district, he will spend three weekends with thefather each month as well as holidays and vacations. The father appeals.
In making an initial custody determination, "the paramount concern is the bestinterests of the child" (Matter ofAlleyne v Cochran, 119 AD3d 1100, 1100 [2014]), which requires review offactors such as the parents' relative fitness, past performance and ability to provide astable home environment for the child, as well as each parent's willingness to foster thechild's relationship with the other parent (see Robert B. v Linda B., 119 AD3d 1006, 1007 [2014],lv denied 24 NY3d 906 [2014]; Matter of Joseph G. v Winifred G., 104 AD3d 1067, 1068[2013], lv denied 21 NY3d 858 [2013]; Matter of Jolynn W. v Vincent X., 85 AD3d 1217,1217-1218 [2011], lv denied 17 NY3d 713 [2011]). The father's appeal focuseson the mother's unilateral removal of the child to California, which deprived the father ofany contact with the child for more than four months. The mother acknowledged in hertestimony that her initial intention in taking this action had been to separate the childpermanently from the father, to prevent any contact between them and to remain inCalifornia until enough time had passed that she could petition for custody in that state.However, Family Court—while criticizing the mother's conduct, characterizing itas "extreme" and refusing to condone it—noted that the mother had apologizedand expressed remorse for the distress her actions had caused. By the time of the hearing,she was residing permanently in New York, had obtained an apartment and had resumedher former employment. The court found that the mother understood that she had made amistake in removing the child, that she had cooperated to facilitate the father's contactwith the child following her return to New York, and that there was no reason to expectthat this would not continue.
Family Court further credited the mother's testimony that she left New York becauseshe was afraid of the father as a result of his angry and sometimes violent behavior. Inher testimony, the mother described several angry outbursts and jealous confrontations,including incidents in which the father kicked family pets. The mother testified that thefather had directed obscene expletives toward her, and that she had heard him directingsimilar insults toward his mother. There was also testimony describing angry altercationsbetween the father and his parents that, in the court's view, revealed a longstandingfamily pattern of dealing with conflict in an aggressive manner. Although the fatheroffered different versions of events, the court credited the mother's account, finding thatthe father denied or minimized his behavior, and that the father had engaged in acts ofdomestic violence against the mother. This Court defers to such credibilitydeterminations (see Matter ofLeonard v Pasternack-Walton, 80 AD3d 1081, 1082 [2011]), and we note that acourt is required to consider the effects of domestic violence upon the best interests of achild in making a custody determination (see Williams v Williams, 78 AD3d 1256, 1257 [2010]; Matter of Melissa K. v BrianK., 72 AD3d 1129, 1131 [2010]).
As for the parties' relative fitness as parents, the record reveals that both parents lovethe child, have been actively engaged in caring for him throughout his life, and arecapable of providing him with a stable home. The mother has a Bachelor's degree andwas pursuing further education at the time of the hearing. The father had previouslyserved in the military. Both [*3]parents were employed,and the father had adjusted his schedule to maximize the time that he was able to spendwith the child. Both parties used appropriate caregivers for the child when they were atwork, and both were in good health. There was no evidence that either parent wasaffected by alcoholism or other substance abuse issues.[FN2]
However, the record reveals significant differences in the parties' parenting stylesthat have led to tension and disagreements between them in the past. The mother testifiedthat she attempted to talk with the child and explain the reasons for discipline to him,while the father was not always reasonable in his expectations of the child, tended to beimpatient and short-tempered and sometimes raised his voice. These considerations,together with Family Court's finding as to the history of domestic violence and themother's fear of the father, support the award of sole rather than joint custody (see Matter of DiMele v Hosie,118 AD3d 1176, 1177-1178 [2014]; Matter of Darrow v Darrow, 106 AD3d 1388, 1390-1391[2013]).
The child shares an affectionate relationship with his older half brother, who resideswith the father. Unfortunately, the award of physical custody to the mother separates thetwo children, but application of the traditional preference for keeping siblings togetherhas become more complicated as a result of changes in family dynamics (see Matter of Luke v Luke, 90AD3d 1179, 1182 [2011]; Matter of Bush v Stout, 59 AD3d 871, 873 [2009]), and theliberal parenting time awarded to the father offers ample opportunities for the halfsiblings to spend time together. Considering the record as a whole, we find a sound andsubstantial basis in the record for the court's award of sole custody to the mother (see Moor v Moor, 75 AD3d675, 677 [2010]).
Finally, as the father correctly asserts, "there is no presumption in favor of awardingcustody of young children to their mother" (Matter of Barkley v Barkley, 60AD2d 954, 955 [1978], affd 45 NY2d 936 [1978]; see Matter of Vincent vVincent, 47 AD2d 786, 786 [1975], appeal dismissed 37 NY2d 774 [1975]).Nonetheless, based upon our review of the record, we reject the father's assertion thatFamily Court's determination here was inappropriately based upon a gender bias.
Lahtinen, J.P., Rose and Devine, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1:The mother initiallysought permission to relocate with the child to California, but later withdrew that request.
Footnote 2:One parent had a healthcondition that was medically managed, with no impact on child care, and Family Courtassigned no weight to a prior driving under the influence conviction dating from 2004, inthe absence of any evidence of alcohol abuse.