| Matter of Benjamin v Benjamin |
| 2008 NY Slip Op 01463 [48 AD3d 912] |
| February 21, 2008 |
| Appellate Division, Third Department |
| In the Matter of Gary R. Benjamin, Appellant, v Michelle C.Benjamin, Respondent. (And Another Related Proceeding.) |
—[*1] Randolph V. Kruman, Law Guardian, Cortland.
Kane, J. Appeal from an order of the Family Court of Cortland County (Campbell, J.),entered October 26, 2006, which dismissed petitioner's application, in two proceedings pursuantto Family Ct Act article 6, to modify a prior custody order.
Petitioner (hereinafter the father) and respondent (hereinafter the mother), the marriedparents of two sons (born in 1999 and 2000), separated in December 2004. In October 2005, theystipulated to an order of joint custody, primary placement with the mother and parenting timewith the father on alternate weekends, one or two overnights during the week and after schooluntil 7:00 p.m. on most school days. At the time, the mother was working weekdays from 3:00p.m. until midnight and the father was unemployed. In January 2006, the mother began workingfrom 10 p.m. until 6:30 a.m. Based upon this new work schedule, the parties informally agreed todeviate from the court order so that the children were with the mother most weekdays afterschool until 7:00 p.m. and spent the night with the father. After some initial proceedings, thefather filed a petition seeking sole custody and the mother cross-petitioned for sole custody.Following a hearing, Family Court denied the father's petition and granted the mother's petition,providing the father with access every other weekend and one afternoon per week. The fatherappeals.[*2]
Family Court did not err in modifying custody. Bothparties agree that the mother's changed work schedule constitutes a change in circumstancesrequiring modification. Record evidence supports the parties' allegations that joint custody isinappropriate, as the parties do not communicate well nor work together to parent the children(see Matter of Maliha v Maliha, 13AD3d 1032, 1033 [2004]; Matter of Rosario WW. v Ellen WW., 309 AD2d 984,985 [2003]).
The mother was the primary caretaker of the children while the parties were together. Duringthe parties' marriage, the father engaged in a five-year affair, culminating in the birth of a childwith his paramour. This event, coupled with the father's lack of financial support, controllingbehavior, verbal degradation of the mother and instances where he shoved her and threw objectsat her, resulted in the separation of the parties when the mother sought refuge in a domesticviolence shelter (see Domestic Relations Law § 240 [1] [a]; Matter of Rodriguez v Guerra, 28AD3d 775, 776-777 [2006]).
After the parties' separation, the mother obtained gainful employment and has sacrificedquality time with the children by working odd shifts to provide them with financial support. Notonly has the father failed to support his children, he inappropriately claimed the children asdependents on his own tax return without informing the mother, thereby further depriving hischildren of financial support (see Matterof Conforti v Conforti, 46 AD3d 877, 878 [2007]; Matter of Grayson v Fenton, 13 AD3d 914, 916 [2004]). Thisconduct is made more egregious by the fact that the father has not been gainfully employed sincefive months before the parties' separation. The father has been inflexible in arranging parentingtime for the mother to accommodate her work schedule and he did not always provide her withinformation from the children's school (see Matter of Nicotera v Nicotera, 222 AD2d892, 893-894 [1995]).
Finally, the father's behavior with other youths causes concern about his suitability to be acustodian (see Matter of Vernon Mc. v Brenda N., 196 AD2d 823, 826 [1993]). He wasconvicted of rape in the third degree for engaging in sexual intercourse with a 16-year-oldneighbor when he was 30 years old (seeMatter of Parkhurst v McFall, 1 AD3d 78, 82 [2003]). Additionally, during the marriagehe inappropriately solicited the mother's younger sister for sex. Giving deference to FamilyCourt's credibility determinations which found the father less than credible, the record provides asound and substantial basis for the court's determination that granting sole custody to the motherwas in the children's best interests (see Friederwitzer v Friederwitzer, 55 NY2d 89, 94[1982]; Matter of Storch v Storch, 282 AD2d 845, 846 [2001], lv denied 96NY2d 718 [2001]; Matter of Thompson v Thompson, 267 AD2d 516, 517-518 [1999]).
The father received a fair hearing. He moved for recusal based upon an alleged lawsuit hefiled against the judge in the Court of Claims. Family Court appropriately denied the motion asthe judge was never served, was unaware of the claim and there is no proof that any claim wasfiled (see Matter of Khan v Dolly,39 AD3d 649, 650-651 [2007]). Because the decision is supported by the record evidence,we find the father's allegations of judicial bias unfounded (see State Div. of Human Rights vMerchants Mut. Ins. Co., 59 AD2d 1054, 1056 [1977]). Admission of proof regarding thefather's prior conviction of rape in the third degree was relevant to his credibility and his conducttoward children (see Matter of Lopez vRobinson, 25 AD3d 1034, 1037 [2006]). References in the court decision to the fatheras a rapist and sexual offender were not personal attacks, but factual statements relevant to hissuitability as a custodian of his children.[*3]
The father did not object to Family Court conducting aLincoln hearing of his older son from another relationship, or the court taking judicialnotice of its prior orders and proceedings, thereby failing to preserve these contentions forappellate review (see Matter of DamianM., 41 AD3d 600, 600 [2007]; Matter of Monroe County Support Collection Unit v Wills, 21 AD3d1331, 1332 [2005], lv denied 6 NY3d 705 [2006]). In any event, the court mayappropriately take judicial notice of its own prior proceedings (see Matter of Anjoulic J., 18 AD3d984, 986 [2005]). Although the court should not have relied upon any evidence from theLincoln hearing without in some way checking its accuracy during an open hearing(see Matter of Lincoln v Lincoln, 24 NY2d 270, 273-274 [1969]), we deem the court'sreliance on the small amount of uncorroborated information here to be harmless error whenconsidering the sufficient properly admitted evidence which supports the custodial determination(see Matter of Tompkins v Holmes,27 AD3d 846, 847 [2006]).
The father received the effective assistance of counsel at the hearing. Counsel presentedevidence, thoroughly cross-examined the mother, made many meaningful objections andadvocated on the father's behalf (seeMatter of Brenden O., 20 AD3d 722, 723 [2005]).
Mercure, J.P., Spain, Rose and Lahtinen, JJ., concur. Ordered that the order is affirmed,without costs.