| Matter of Peroglu v Baez |
| 2008 NY Slip Op 06647 [54 AD3d 416] |
| August 19, 2008 |
| Appellate Division, Second Department |
| In the Matter of Norreece Peroglu, Appellant, v VictorBaez, Respondent. |
—[*1] Garrett R. Lacara, Bohemia, N.Y., for respondent. Robert C. Mitchell, Riverhead, N.Y. (Diane B. Groom of counsel), attorney for thechildren.
In related custody proceedings pursuant to Family Court Act article 6, the mother appealsfrom an order of the Family Court, Suffolk County (Hoffman, J.), dated December 21, 2007,which, after a hearing, denied her petitions for sole custody of the parties' two children, andgranted the father's cross petitions for sole custody.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs,the mother's petitions for sole custody of the parties' two children are granted, the father's crosspetitions for sole custody are denied, and the matter is remitted to the Family Court, SuffolkCounty, for further proceedings consistent herewith, before a different Judge.
The subject children are Jeremiah, born November 26, 2001, and Nathaniel, born August 1,2005. After the birth of Jeremiah, the mother moved, with the child, to Florida. Thereafter, bystipulation dated October 27, 2003, the parties agreed to joint legal and residential custody untilJeremiah reached school age, at which point residential custody would revert to the mother oncondition that she moved back to New York. Before Jeremiah reached school age, the partiesreconciled, and resided together in Suffolk County, where Nathaniel was born.
In April 2007 the mother took both children from Centereach in Suffolk County to [*2]live with her mother in the Bronx, and filed petitions for solecustody. The father filed cross petitions for sole custody. In May 2007 an order of protection wasentered upon consent, directing the father to stay away from the mother, her home, and her placeof employment, except for visitation purposes. The parties agreed that the father would havevisitation on alternate weekends. Thereafter, a hearing was conducted with respect to custody.
It is clear from the evidence adduced at the hearing that both parties are loving parents andneither party is unfit. However, the record discloses certain troublesome facts about each of theparties. It is apparent that the relationship between the parties was a stormy one, and the fatheracknowledged that "everybody yells."
In August 2007 the Family Court directed the mother to register Jeremiah in first grade in theMiddle Country School District in Suffolk County, where he had attended kindergarten.However, when the mother changed her residence and place of employment to Queens, sheenrolled Jeremiah in school there, contrary to the direct order of the Family Court.
At the custody hearing, the father's neighbor testified that he had heard the father cursing,and observed visitors and noisy parties at the father's house "at all hours of the night." In August2007 he observed police activity at the father's house, and spoke to the police detectives.
The father acknowledged that his house, owned by him and the mother jointly, was inforeclosure. Further, the father had a criminal record consisting of two felony convictions andone misdemeanor conviction from the 1990s.
At the conclusion of the hearing, the children's attorney noted that this was a difficult casesince both parties were "clearly flawed," but also had "strengths and good points." However, sherecommended that the children remain with the mother in the interest of stability, since themother had had sole custody of them for seven months during the pendency of the proceedings,and the father's house was in foreclosure.
In an order appealed from dated December 21, 2007, the father was awarded custody of thechildren, with "substantial visitation" to the mother. By decision and order on motion datedJanuary 14, 2008, this Court stayed enforcement of the order appealed from and continuedresidential custody with the mother pending hearing and determination of the instant appeal.Thereafter, in an order dated January 24, 2008, the Family Court awarded the father temporaryvisitation, inter alia, for three weekends per month, and directed that "[u]pon completion of theappeal, the parties may seek modifications to this Order as appropriate."
We reverse the order dated December 21, 2007, on the ground that it lacks a sound andsubstantial basis in the record, keeping in mind that the paramount concern in this matter is thebest interests of the children (see Eschbach v Eschbach, 56 NY2d 167, 171, 173 [1982];Friederwitzer v Friederwitzer, 55 NY2d 89, 94 [1982]).
We note that the Family Court found it significant that the mother came to court dressed in"hospital clothing, as if she were a nurse or other medical professional, but in fact works as areceptionist." The mother worked as an "assistant" in a medical office. The nature of her workattire was not relevant to her credibility.[*3]
Further, the Family Court found it significant that themother was married to another man "for the entire course of the parties' relationship" and, basedupon these facts, found her testimony "less than credible." However, the father had similar issues,such as a third child by a previous relationship with a woman he never married, and a fourthchild from yet another relationship. Further, the father had a criminal record involving seriouscrimes.
Under the totality of the circumstances, the interests of the children would best be served bypreserving the status quo, and leaving the children in the custody of their mother, who has servedas their primary caretaker throughout their lives (see Eschbach v Eschbach, 56 NY2d at171).
We further note that the conclusion of the Family Court that the mother is willing to "cut" thefather out of the lives of the children is not supported by the record. Her move from the Bronx toQueens during the pendency of the proceedings did not impose obstacles to visitation, which wasongoing.
We deem it appropriate that the father's liberal visitation continue. Accordingly, the matter isremitted to the Family Court, Suffolk County, for further proceedings consistent herewith, beforea different Judge. In awarding permanent visitation, the Family Court may continue the visitationarrangement set by order of the Family Court dated January 24, 2008, with any appropriatemodifications. Santucci, J.P., Angiolillo, Eng and Chambers, JJ., concur.