| Matter of Clupper v Clupper |
| 2008 NY Slip Op 09305 [56 AD3d 1064] |
| November 26, 2008 |
| Appellate Division, Third Department |
| In the Matter of Serena B. Clupper, Respondent, v Donald E.Clupper, Appellant. |
—[*1] Mitch Kessler, Law Guardian, Cohoes.
Kane, J. Appeal from an order of the Family Court of Delaware County (Becker, J.), enteredJune 28, 2007, which granted petitioner's application, in a proceeding pursuant to Family Ct Actarticle 6, for custody of the parties' children.
The parties are the parents of a son (born in 2002) and a daughter (born in 2004). Bothparents and the daughter are deaf and the son has impaired speech. The parties separated in 2005,with respondent moving out of the house and the children remaining with petitioner. Petitionercommenced this proceeding seeking custody of the children. After a hearing held over the courseof several months, Family Court awarded petitioner sole legal and physical custody of thechildren, with limited visitation to respondent, who now appeals.
Family Court properly awarded sole custody rather than joint custody. While joint custody isan aspirational goal in every custody matter, such an award is inappropriate where the partieshave demonstrated an inability to effectively communicate or cooperate to raise the children (see Matter of Thomas v Osborne, 51AD3d 1064, 1066 [2008]; Matter ofEck v Eck, 33 AD3d 1082, 1083-1084 [2006]). Respondent testified that petitioner doesnot keep him informed of the children's activities and appointments, but he also blocked e-mailsand instant messages from her accounts, apparently because her new account includedinformation about her paramour. By this blocking, respondent hampered any communication, asthe parties cannot speak to each other on ordinary telephones. Petitioner testified that while shewould allow [*2]respondent to attend medical appointments forthe children, she did not feel comfortable being in the room with him because he berated her inthe physician's office. The parties' main points of disagreement concerned the amount ofinvolvement and integration the children had with the deaf community versus the hearingcommunity and whether the daughter should be tested for or receive a cochlear implant.Considering the parties' demonstrated difficulties in communication and disagreement overimportant issues involved in raising the children, the court reasonably determined that jointcustody was not feasible (cf. Matter ofKilmartin v Kilmartin, 44 AD3d 1099, 1101 [2007]; Matter of Rosario WW. v EllenWW., 309 AD2d 984, 985-986 [2003]).
Family Court did not err in awarding sole custody to petitioner and limited parenting time(visitation) to respondent. In determining which custody arrangement is in the children's bestinterests, the court must consider various factors, including maintaining stability in the children'slives, assessing the home environments of both parents, each parent's willingness to foster arelationship with the other parent, and their past performance and ability to provide for thechildren's overall well-being including any special needs of the children (see Matter of Gast v Gast, 50 AD3d1189, 1189 [2008]; Matter of Kilmartin v Kilmartin, 44 AD3d at 1102). Here, thechildren had lived with petitioner for their entire lives, together with her other children. Petitionerhad been the primary caretaker. Testimony indicated that respondent spent long periods of timeon the computer and at times needed to be encouraged to join in activities with the children.Although petitioner moved from her mother's house, where the parties had lived with thechildren, into her paramour's house, the houses were only two blocks away and the childrencontinued to see their grandmother nearly every day. Respondent quit his job and did not seekemployment, barely getting by on Social Security benefits and food stamps. He paid no childsupport to petitioner and sought a portion of the children's disability benefit payments to buy gasand food for them when he had parenting time. For a brief period, respondent was eitherunwilling or financially unable to adhere to his daughter's dietary restrictions based upon hermedical condition.
Respondent moved four times between October 2005 and the end of the hearing. The lastmove was from an apartment within a few miles of petitioner to his sister's house in Connecticut.He did not provide any explanation as to why this move was necessary. His plans to attend theUniversity of Maryland were ill-defined, as he had not actually applied for admission or financialaid, nor even visited the campus. His suggestion that he would drive the children from Marylandsix hours each way every other weekend for parenting time with petitioner was unreasonable.According substantial deference to the hearing court's factual findings and credibilitydeterminations (see Matter of Gast v Gast, 50 AD3d at 1189-1190; Matter of Eck vEck, 33 AD3d at 1083), which favored petitioner, Family Court properly determined that thechildren's best interests would be served by awarding sole legal and physical custody topetitioner. Although the parenting time granted to respondent is quite limited, the schedule wasnot unreasonable based on the ages of the children and respondent's own choice to move to alocation four hours away from his children without any justification. To the extent thatrespondent now requests the right to parenting time with the children when he is in the area oftheir residence, such request should be made by application to the appropriate Family Court,which can make a determination regarding the children's present best interests.
Mercure, J.P., Spain, Rose and Stein, JJ., concur. Ordered that the order is affirmed, withoutcosts.