| Matter of Bryan K.B. v Destiny S.B. |
| 2007 NY Slip Op 07265 [43 AD3d 1448] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| In the Matter of Bryan K.B., Respondent, v Destiny S.B., Appellant.(Proceeding No. 1.) In the Matter of Destiny S.B., Appellant, v Bryan K.B., Respondent.(Proceeding No. 2.) (Appeal No. 1.) |
—[*1] David J. Pajak, Alden, for petitioner-respondent and respondent-respondent.
Appeal from an order of the Family Court, Genesee County (Eric R. Adams, J.), enteredSeptember 15, 2006 in a proceeding pursuant to Family Court Act article 6. The order awardedpetitioner-respondent custody of the child with visitation to respondent-petitioner.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyreversed on the law without costs, the petition is denied, the cross petition is granted, custody ofthe child is awarded to respondent-petitioner with visitation to petitioner-respondent and thematter is remitted to Family Court, Genesee County, for further proceedings in accordance withthe following memorandum: Bryan K.B. and Destiny S.B. are the parents of Clayton B.Approximately nine months after Bryan K.B., the father, moved out of the marital residence, hepetitioned for custody of the child. Destiny S.B, the mother, thereafter cross-petitioned forcustody. Family Court conducted a hearing and, by the order in appeal No. 1, the court grantedthe father custody of the child, with visitation to the mother. The father failed to actupon that order, however, and the mother thereafter petitioned for a change of custody. The courtconducted a second hearing and, by the order in appeal No. 2, the court continued custody withthe father. We conclude that the court erred in awarding custody to the father in the first instance,and we therefore dismiss appeal No. 2 as moot (see Lucey v Lucey, 60 AD2d 757[1977]).[*2]
Generally, a " 'court's determination regarding custodyand visitation issues, based upon a first-hand assessment of the credibility of the witnesses afteran evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks anevidentiary basis in the record' " (Matter of Hill v Rogers, 213 AD2d 1079, 1079 [1995];see Matter of Vincent A.B. v KarenT., 30 AD3d 1100, 1101-1102 [2006], lv denied 7 NY3d 711 [2006]; Matter of John P.R. v Tracy A.R., 13AD3d 1125 [2004]). "Such deference is not warranted, however, where the custodydetermination lacks a sound and substantial basis in the record" (Fox v Fox, 177 AD2d209, 211-212 [1992]). In our view, the court's determination in this case lacks a sound andsubstantial basis in the record.
Although primary importance is to be placed on each parent's "ability to provide for thechild's emotional and intellectual development, the quality of the home environment and theparental guidance provided" (Matter of Louise E.S. v W. Stephen S., 64 NY2d 946, 947[1985]), none of those factors was adequately addressed in the court's decision. Furthermore, thecourt failed to take into consideration such important factors as the desires of the child and hisneed for stability in remaining with the only primary caretaker he has known (see id.;see also Eschbach v Eschbach, 56 NY2d 167, 173 [1982]; Friederwitzer vFriederwitzer, 55 NY2d 89, 94 [1982]).
Our authority in determinations of custody is as broad as that of Family Court (see LouiseE.S., 64 NY2d at 947) and where, as here, the record is sufficient for this Court to make abest interests determination (see Matterof Brian C., 32 AD3d 1224, 1225 [2006], lv denied 7 NY3d 717 [2006]), wewill do so in the interests of judicial economy and the well-being of the child (see Matter ofHilliard v Peroni, 245 AD2d 1107 [1997]; cf. Matter of Van Gorder v Van Gorder,188 AD2d 1049, 1050 [1992]). In making a determination concerning custody, "numerousfactors are to be considered, including the continuity and stability of the existing custodialarrangement, the quality of the child's home environment and that of the parent seeking custody,the ability of each parent to provide for the child's emotional and intellectual development, thefinancial status and ability of each parent to provide for the child, and the individual needs andexpressed desires of the child" (Matterof Jeffrey L.J. v Rachel K.B., 42 AD3d 912, 913 [2007]; see Fox, 177 AD2d at210; see generally Eschbach, 56 NY2d at 171-173). After reviewing those factors, weconclude that it is in the child's best interests to award custody to the mother, although it appearsthat both parents are fit and appropriate caretakers. First, the mother was the child's primarycaretaker for the child's entire life, with the possible exception of three months, and thus thecontinuity and stability of that living situation weighs in favor of the mother. Second, althoughthe mother has some physical ailments and suffers from some degree of depression, thoseproblems have not prevented her from taking an active role in the child's upbringing. Third, thequality of the home environment weighs in favor of the mother. She has a four-bedroomapartment, which she shares with one or two of the child's half siblings. The father, on the otherhand, shares a two-bedroom apartment with his girlfriend and her baby and, on weekends, withher three other children as well. Additionally, the father is absent during significant portions ofthe day, and thus the child is cared for by the father's girlfriend, a woman with whom the childhas a questionable relationship. Fourth, the evidence establishes that the mother took a muchmore active role than the father in the emotional and intellectual development of the child byenrolling him in numerous extracurricular activities, including music lessons, a library readingprogram, soccer and a handbell choir at church. Finally, the Law Guardian indicated that thechild was very happy residing with the mother, while the father's girlfriend admitted that thechild often acted out while at the father's residence.
We therefore reverse the order in appeal No. 1, deny the father's petition, grant the mother'scross petition, award custody of the child to the mother with visitation to the father and remit thematter to Family Court to fashion an appropriate visitation schedule. Present—Scudder,P.J., Hurlbutt, Lunn, Fahey and Pine, JJ.