| Matter of Bush v Stout |
| 2009 NY Slip Op 01371 [59 AD3d 871] |
| February 26, 2009 |
| Appellate Division, Third Department |
| In the Matter of Christina Bush, Appellant, v Jeffrey Stout,Respondent. (And Another Related Proceeding.) |
—[*1] Pomeroy, Armstrong & Casullo, L.L.P., Cortland (Victoria J. Monty of counsel), forrespondent. William L. Koslosky, Law Guardian, Utica.
Mercure, J.P. Appeal from an order of the Family Court of Cortland County (Campbell, J.),entered October 30, 2007, which, among other things, granted respondent's application, in twoproceedings pursuant to Family Ct Act article 6, for custody of the parties' child.
The parties are the unmarried parents of a daughter, born in 2004. After their relationshipended, the child lived primarily with petitioner (hereinafter the mother), who allowed respondent(hereinafter the father) to have overnight visitation with the child once per week pursuant to theparties' informal custody agreement. In addition, the child's grandmothers and paternal auntprovided care at least several times a week. A dispute arose between the parties and, thereafter,the mother commenced the first of these proceedings pursuant to Family Ct Act article 6, seekingcustody of the child. The father cross-petitioned for custody and, following a fact-findinghearing, Family Court granted the father's cross petition, awarding him custody with visitation tothe mother on alternate weekends. The mother appeals, and we now affirm.[*2]
"Any court in considering questions of child custodymust make every effort to determine what is for the best interest of the child, and what will bestpromote [the child's] welfare and happiness" (Eschbach v Eschbach, 56 NY2d 167, 171[1982] [internal quotation marks and citations omitted]; see Matter of Grant v Grant, 47 AD3d 1027, 1028 [2008]).Relevant factors to be considered in determining the child's best interest include "maintainingstability for the child[ ], the child['s] wishes, the home environment with each parent, eachparent's past performance and relative fitness, each parent's ability to guide and provide for thechild['s] overall well-being and the willingness of each to foster a positive relationship betweenthe child[ ] and the other parent" (Matter of Kilmartin v Kilmartin, 44 AD3d 1099, 1102 [2007]; see Matter of Anson v Anson, 20AD3d 603, 604 [2005], lv denied 5 NY3d 711 [2005]).
Here, the record reflects that the father has taken the more proactive role in parenting thechild, and that he is able to provide the child with greater stability, given his more consistentemployment history and living arrangements. In contrast, the mother has disparaged the father infront of the child, threatened to shoot the father if he tried to exercise visitation, threatened toflee with the child if the father obtained custody, and otherwise attempted to hinder the father'srelationship with the child in order to gain a tactical advantage in this proceeding. Moreover,although the mother correctly argues that "siblings should be kept together if possible, that rulehas become more complicated due to changing family dynamics" (Matter of Tavernia v Bouvia, 12 AD3d960, 962 [2004]). Inasmuch as the child never shared a household with the mother's olderson, Family Court properly concluded that other considerations outweighed the benefit to thechild of placing her with the mother (see id. at 962; Matter of Chant v Filippelli,277 AD2d 741, 742-743 [2000]; seealso Matter of Dunaway v Espinoza, 23 AD3d 928, 929-930 [2005]). In our view, giventhe totality of the circumstances, Family Court's determination has a sound and substantial basisin the record and, thus, there is no basis to disturb the award of custody to the father (seeMatter of Kilmartin v Kilmartin, 44 AD3d at 1102-1103; Matter of Anson v Anson,20 AD3d at 604; Matter of Ebel v Urlich, 273 AD2d 530, 531 [2000]).
Turning to the mother's remaining arguments, we note that "[a]lthough always highlyrecommended and strongly encouraged, the appointment of a Law Guardian is a matter withinFamily Court's discretion" (Matter of Ebel v Urlich, 273 AD2d at 532; see Matter of Amato v Amato, 51AD3d 1123, 1124 [2008]). In light of the extensive, detailed testimony given in this case, aswell as the home evaluations conducted at the mother's request, we reject the mother's contentionthat Family Court abused its discretion in declining to appoint a law guardian (see Matter of Comins v Briggs, 25AD3d 842, 844 [2006]; Matter of Ebel v Urlich, 273 AD2d at 532; Matter ofWalker v Tallman, 256 AD2d 1021, 1022 [1998], lv denied 93 NY2d 804 [1999]).Finally, there is no support in the record for the mother's assertions of "lingering. . . judicial bias" and ineffective assistance of counsel.
Rose, Lahtinen, Kane and Malone Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.