| Matter of Lewis v VanWormer |
| 2007 NY Slip Op 09456 [45 AD3d 1196] |
| November 29, 2007 |
| Appellate Division, Third Department |
| In the Matter of Robert C. Lewis, Appellant, v ASHLEYVanWORMER, Respondent. (And Five Other Related Proceedings.) |
—[*1] Allen E. Stone Jr., Vestal, for respondent. Daniel J. Fitzsimmons, Law Guardian, Watkins Glen.
Crew III, J. Appeal from an order of the Family Court of Schuyler County (Argetsinger, J.),entered June 30, 2006, which, among other things, dismissed petitioner's application, in sixproceedings pursuant to Family Ct Act articles 6 and 8, to modify a prior order of custody andvisitation.
Petitioner and respondent are the biological parents of two children born in 2003 and 2004.The parties, who never married, began their relationship when petitioner was 15 years old andrespondent was 22 years old. Following the birth of their first child, the parties continued toreside together until petitioner was jailed upon his plea of guilty to a drug-related class E felony.The parties resided together again following petitioner's release from jail, during which time theirsecond child was conceived and born. Respondent moved out of the parties' residence and begandating another man in June 2005, who would prove to be the source of much of the currentanimosity between petitioner and respondent.
Thereafter, in July 2005, Family Court entered an order, apparently upon consent, awardingthe parties joint legal custody of the minor children with physical custody to respondent andvisitation to petitioner. Approximately one month later, petitioner commenced the instant [*2]modification proceeding contending, among other things, thatrespondent was chronically late for his visitations with their children and, as a result, hiscourt-ordered visitation was being curtailed impermissibly. Respondent cross-petitioned for solecustody asserting that petitioner was verbally abusive to and had threatened her. Variousviolation petitions also were filed against each party.
Following a two-day hearing, Family Court, after detailing the parties' less than exemplarypast and documenting their respective (and numerous) shortcomings, concluded that it would bein the children's best interests to continue joint legal custody with primary physical custody torespondent and liberal visitation to petitioner. In so doing, Family Court strongly cautionedrespondent that further inappropriate behavior or interference by her boyfriend would be lookedupon "extremely unfavorably"—the unspoken implication being that continued immaturityon his part would have implications for her vis-à-vis custody. This appeal by petitionerensued.
We affirm. Assuming, without deciding, that petitioner met his initial burden ofdemonstrating a sufficient change in circumstances to warrant modification of the prior order (see Matter of Brady v Schermerhorn,25 AD3d 1037, 1038 [2006]), we cannot say, based upon our review of the record as awhole, that Family Court erred in continuing primary physical custody with respondent. Whilerespondent's chronic tardiness, stated preference that petitioner have no contact with the childrenand apparent desire to have her boyfriend assume the role of "daddy" is in no way condoned bythis Court, her conduct does not rise to the level of persistent interference with petitioner'svisitation rights and, hence, is insufficient to render her unfit to retain custody (compare Matter of Chase v Chase, 34AD3d 1077, 1079-1080 [2006]). With regard to the parties' respective abilities as parents,suffice to say that while either of them is capable of caring for the children, each of them hasdemonstrated a marked lack of maturity and an utter absence of sound decision-makingskill—and respondent's boyfriend, by her own admission, has only added fuel to thisparticular fire. Simply put, Family Court was confronted with the unenviable task of having toaward custody to one of two less than perfect parents, and given that the court's decision in thisregard was based largely upon its assessment of the credibility of the respective parties which, inturn, was gleaned from their numerous appearances before the court, we are not inclined todisturb Family Court's resolution of this matter.
Cardona, P.J., Mercure, Mugglin and Rose, JJ., concur. Ordered that the order is affirmed,without costs.