| Matter of Daniel TT. v Diana TT. |
| 2015 NY Slip Op 03585 [127 AD3d 1514] |
| April 30, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Daniel TT.,Respondent, v Diana TT., Appellant. (And Two Other RelatedProceedings.) |
Ted J. Stein, Woodstock, for appellant.
Betty J. Potenza, Highland, attorney for the children.
Peters, P.J. Appeal from an order of the Family Court of Ulster County (Maney, J.),entered October 2, 2013, which, among other things, partially granted petitioner'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 theparents of two sons (born in 2006 and 2008). In December 2011, the mother traveled toFlorida with the children without the father's consent and in violation of a court orderprohibiting her from removing the children from the state. The father immediatelypetitioned for custody and was awarded temporary legal and physical custody of thechildren in January 2012. Thereafter, he commenced several proceedings seekingmodification of the visitation provisions of the temporary order and alleging that themother had committed various family offenses. Following a fact-finding hearing, FamilyCourt granted the parties joint legal custody of the children, with primary physicalcustody to the father and parenting time to the mother. The mother appeals.
"An initial custody determination is controlled by the best interests of the child[ren],taking into consideration such factors as the parents' past performance and relativefitness, their willingness to foster a positive relationship between the child[ren] and theother parent, as well as their ability to maintain a stable home environment and providefor the child[ren]'s overall well-being" (Matter of Jarren S. v Shaming T., 117 AD3d 1109, 1110[2014] [internal quotation marks and citations omitted]; see Matter of Benjamin vLemasters, 125 AD3d 1144, 1145[*2][2015]; Matter of Brown v Akatsu, 125AD3d 1163, 1164 [2015]). We accord great deference to Family Court's factualfindings and credibility determinations given its superior position to observe and assessthe witnesses' testimony and demeanor firsthand, and will not disturb its custodialdetermination if supported by a sound and substantial basis in the record (see Matter of Kayla Y. v PeterZ., 125 AD3d 1126, 1127 [2015]; Matter of Alleyne v Cochran, 119 AD3d 1100, 1101[2014]; Matter of DiMele vHosie, 118 AD3d 1176, 1177 [2014]).
The record amply supports Family Court's determination that the best interests of thechildren will be served by granting physical custody to the father. While the mother hasbeen the primary caregiver for most of the children's lives, evidence concerning herbehavior seriously called into question her parental judgment and fitness. Testimony waspresented that the mother shoplifted while the children were in her care and, at times,used them to aid her in those endeavors. When she was caught shoplifting from adepartment store in September 2011, the mother declined the opportunity to call someoneto pick up the children, choosing instead to expose them to her arrest. The motherengaged in additional criminal conduct that led to a number of arrests and severalconvictions in the months preceding the hearing, and, as previously mentioned, shedisobeyed a court order prohibiting her from removing the children from the state. In histestimony, the father explained that the mother regularly screamed at the children whenthey misbehaved and described several angry outbursts by the mother in their presence.After the father was awarded temporary custody, the mother engaged in varioushostilities against him and directed a number of accusations at him, including making anunfounded report to child protective services that, among other things, he and thepaternal grandfather had physically and sexually abused the children. Family Court wasalso concerned about the mother's ability to financially provide for the children, notingthat she was unemployed and remained financially dependent upon her parents, withwhom she resides.
The father, on the other hand, has maintained steady employment and provides astable environment for the children in the home where they have lived since birth.Further, his parents live nearby and care for the children while he is working and thechildren are not in school. While the father is not without his own shortcomings, FamilyCourt fully considered the father's prior prescription drug dependency and other lapses injudgment in the course of assessing the parties' respective strengths and weaknesses, pastperformance and ability to provide for the children's overall well-being. Considering thetotality of the circumstances and according due deference to Family Court'sdetermination that the father's testimony was more credible (see Matter of Joseph WW. vMichelle WW., 118 AD3d 1054, 1057 [2014]; Matter of Mahoney v Regan,100 AD3d 1237, 1238 [2012], lv denied 20 NY3d 859 [2013]), we find asound and substantial basis for the court's conclusion that an award of physical custodyto the father is in the children's best interests.[FN*]
Lahtinen, Rose and Devine, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *:Although by no meansdeterminative, we note that this conclusion is in accord with the position advanced by theattorney for the children both at the hearing and on appeal (see Matter of Lawrence vKowatch, 119 AD3d 1004, 1006 n 2 [2014]; Matter of Robert AA. v Colleen BB., 101 AD3d 1396,1399 n 2 [2012], lv denied 20 NY3d 860 [2013]).