| Matter of Dickinson v Woodley |
| 2007 NY Slip Op 07946 [44 AD3d 1165] |
| October 25, 2007 |
| Appellate Division, Third Department |
| In the Matter of Roy J. Dickinson, Respondent-Appellant, v LeannWoodley, Appellant-Respondent. Karen R. Crandall, as Law Guardian,Appellant-Respondent. |
—[*1] Karen R. Crandall, Law Guardian, Schenectady, appellant-respondent pro se. Coughlin & Gerhart, Binghamton (Carl A. Kieper of counsel), forrespondent-appellant.
Carpinello, J. Cross appeals from an order of the Family Court of Broome County(Charnetsky, J.), entered June 7, 2006, which partially granted petitioner's application, in aproceeding pursuant to Family Ct Act article 6, for custody of the parties' child.[*2]
The parties, who never married, are the parents of a son(hereinafter the child), born in 2003. Prior to the commencement of this custody proceeding inOctober 2005, the child resided with respondent, but had frequent, weekly overnight visitationwith petitioner. While the parties' informal custodial arrangement was working well, petitionercommenced this proceeding based on concerns for the child's safety due to the escalatingbehavioral problems of his half brother, who also lived with respondent. Following a hearing,Family Court issued a temporary order granting the parties joint custody, but directing that thechild's primary residence was to be with petitioner. Respondent was granted daily, weekdayvisitation (i.e., the child was to be with her on all days that the half brother was in school), aswell as other periods of time as the parties could agree.
A trial thereafter ensued following which Family Court maintained joint custody between theparties and primary physical custody with petitioner. A similar daily, weekday visitation schedulewas granted to respondent. She was also granted weekend visitation at least twice per month.Respondent and the Law Guardian now appeal.[FN1]
Respondent argues, and the Law Guardian agrees, that she should have been granted primaryphysical custody of the child since he had lived with her since birth, she was a dedicated andcaring mother and because he and the half brother are siblings. We begin by noting that theprimary consideration in custody proceedings is the best interest of the child (see Eschbach vEschbach, 56 NY2d 167, 171 [1982]), with numerous factors taken into consideration by thecourt (see e.g. Matter of Young vCollins, 37 AD3d 1014, 1015 [2007]; Matter of La Pointe v La Pointe, 33 AD3d 1174 [2006]; Matter of Anson v Anson, 20 AD3d603, 603-604 [2005], lv denied 5 NY3d 711 [2005]). Here, there is little dispute thatthe parties are both capable, fit and loving parents. Moreover, petitioner is able to provide thechild with a stable environment in a home that he shares with his parents, is gainfully employedand has worked well with respondent in the past concerning all parenting issues pertaining to thechild. While respondent and the Law Guardian make much of the fact that petitioner "waited"until the child was over two years old to seek custody, we find his explanation for doing so atthat time—increasing concerns over the half brother's behavior during the fall of2005—to be entirely reasonable.
To be sure, the parties' informal custody arrangement during the child's initial years of lifewas a relevant factor to be considered in the overall analysis (see e.g. Matter of Hissam v Mackin, 41 AD3d 955, 956 [2007],lv denied 9 NY3d 809 [2007]; Matter of Young v Collins, supra; Matter of Bessette v Pelton, 29 AD3d1085, 1087 [2006]). This being said, we note that petitioner spent a considerable amount oftime with the child under this prior [*3]arrangement, withfrequent, weekly overnight visitation. Moreover, although Family Court granted petitionerprimary physical custody, liberal visitation provisions were made for respondent, whichessentially amounted to visitation every day during the week and overnight visitation every otherweekend.
It is clear that the determinative factor in granting primary custody to petitioner stemmedfrom concerns raised about the half brother's emotional problems and its potential impact on thechild. In our view, Family Court gave appropriate weight to the evidence on this issue and fairlyconcluded that it tipped the scale in favor of petitioner being the child's primary custodian. Therecord reveals that the half brother (who was eight years old at the time of the hearing) has ahistory of significant behavioral issues.[FN2]As of that hearing, he had been previously hospitalized for his aggressive behavior, had beenseeing a psychiatrist and a therapist for quite some time and was on medication for issues ofaggression, acting out and attention deficit hyperactivity disorder.
In spite of services and medications, the record reveals that the half brother's behaviorescalated during the fall of 2005, at times warranting police intervention and/or measures toremove the child from his half brother's presence.[FN3]Respondent's laudable efforts at addressing the half brother's problems while also keeping thechild safe made this a difficult case indeed. Notwithstanding, viewing the totality of thecircumstances and giving due deference to Family Court's fact findings (see e.g. Rolls vRolls, 243 AD2d 906, 907 [1997]; Matter of McGrath v Collins, 202 AD2d 719, 720[1994]), we find that a sound and substantial basis exists in the record to support its decision toaward petitioner primary physical custody and further conclude that such determination is in thebest interest of the child.
Cardona, P.J., Mercure, Crew III and Kane, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Petitioner also filed a notice ofcross appeal but he has apparently abandoned any arguments in support thereof as his brief seeksaffirmance of Family Court's order.
Footnote 2: Indeed, respondent testified thatshe has been given a work exemption because of the half brother's problems.
Footnote 3: Of further concern to petitionerduring the fall of 2005 were certain measures taken by respondent to control the half brother,namely, having an inside deadbolt installed on the front door that could only be unlocked with akey and nailing certain windows shut. Both measures, in petitioner's view, raised safety issues forthe child. As of the hearing, however, the nails had been removed from the windows and theinside deadbolt lock removed.