| Matter of Boulerice v Heaney |
| 2007 NY Slip Op 09469 [45 AD3d 1217] |
| November 29, 2007 |
| Appellate Division, Third Department |
| In the Matter of Kristy Boulerice, Respondent, v Vincent Heaney,Appellant. (And Another Related Proceeding.) |
—[*1] Michael G. Paul, Albany, for respondent. Jessica C. Eggleston, Law Guardian, Saratoga Springs.
Carpinello, J. Appeals (1) from an order of the Family Court of Clinton County (Lawliss, J.),entered January 25, 2007, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, for custody of the parties' children, and (2) from an order of said court,entered January 22, 2007, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 8, for an order of protection.
The parties are the unwed parents of two boys (born in 1999 and 2003). In November 2006,petitioner (hereinafter the mother) commenced this proceeding for sole legal and physicalcustody. She thereafter filed a family offense petition alleging that respondent (hereinafter thefather) threatened her. Following a combined hearing on both petitions, Family Court granted themother sole legal and physical custody and permitted the father to have only weekly supervisedvisitation. The court also found that the father committed a family offense. The father appeals.
On appeal, the father does not dispute that joint custody is not a viable option. Rather, [*2]even though he did not file a cross petition for sole custody orrequest such relief before Family Court, he now argues that he should have been awarded solecustody.[FN1]We are unpersuaded. In rendering its custody determination, Family Court was "required toconsider the best interests of the child[ren] by reviewing numerous factors, including eachparent's home environment and each parent's relative fitness and ability to provide for thechild[ren's] future well-being" (Matterof Tompkins v Holmes, 27 AD3d 846, 847 [2006]). Here, in addition to evidence thatthe mother has been the primary caregiver for the children and most attentive to their health andeducational needs, the testimony, as credited by Family Court, reveals that the father was bothmentally and physically abusive to the children.
In particular, he inflicted corporal punishment on them, by way of a belt or spankings withhis hand, on a regular basis. Indeed, the older child expressed fear of the father. There was alsoevidence that the father was mentally and physically abusive to the mother. Upon reviewing thisevidence, and according deference to Family Court's assessment of credibility, we are satisfiedthat its decision awarding the mother sole custody and permitting only supervised visitation tothe father is supported by a sound and substantial basis in the record promoting the children'sbest interests (see Matter of Yette vYette, 39 AD3d 952, 954 [2007], lv denied 9 NY3d 802 [2007]; Matter ofTompkins v Holmes, supra; Matterof St. Pierre v Burrows, 14 AD3d 889, 891 [2005]; see generally Friederwitzer vFriederwitzer, 55 NY2d 89, 96 [1982]).
The father next argues that the family offense finding was not supported by sufficientevidence. The hearing established that, upon being served with the subject custody petition, thefather threatened the mother during a telephone conversation, warning her that she "better watch[her] back at all times." This threat, which the mother took seriously given the father's pastviolence toward her, was overheard by a member of her family. Although the father deniedmaking this threat, Family Court did not believe him and instead credited the mother's proof. Wewill not disturb this credibility determination or the court's finding that this evidence establisheda family offense, namely, aggravated harassment in the second degree, by a preponderance of theevidence (see Family Ct Act § 812 [1]; § 832; Matter of Draxler v Davis, 11 AD3d760, 760-761 [2004]).
As a final matter, we note that the Law Guardian on appeal, troubled by the mother's failureto protect the children from the father's abuse over the years, requests that Family Court's [*3]order be modified to include appropriate counseling for the motherand/or parenting classes.[FN2]While these concerns are well taken, we note that the previous Law Guardian who appeared inFamily Court did not make this request nor file an appeal from the order. We note further that themother had been participating in parenting classes as of the hearing, the parties no longer residetogether and the father has supervised visitation only. Thus, even though the inclusion of aprovision requiring domestic violence counseling and/or continuance of parenting classes wouldnot have been totally unreasonable, we discern no basis, on this record at this juncture, to modifythe order to mandate same.
Mercure, J.P., Peters, Lahtinen and Kane, JJ., concur. Ordered that orders are affirmed,without costs.
Footnote 1: At the conclusion of the hearing,the father's attorney argued in summation that the father "really would like . . . somevisitation with his children." The attorney acknowledged that "the type of visitation" (i.e.,supervised versus unsupervised) would depend on which testimony Family Court credited on theissue of the father's violent tendencies. The father's position was reiterated at the end of thissummation at which time his attorney made clear that "[the father] would like the children toremain with their mom and he wants to be able to visit them."
Footnote 2: A different Law Guardianrepresented the children in the proceedings before Family Court.