| Matter of Brian JJ. v Heather KK. |
| 2009 NY Slip Op 03420 [61 AD3d 1285] |
| April 30, 2009 |
| Appellate Division, Third Department |
| In the Matter of Brian JJ., Appellant, v Heather KK., Respondent.(And 10 Other Related Proceedings.) |
—[*1] Brian J. Mohin, Hartwick, for respondent. Mitch Kessler, Law Guardian, Cohoes.
Stein, J. Appeal from an order of the Family Court of Chemung County (Brockway, J.),entered November 19, 2007, which, among other things, in 11 proceedings pursuant to Family CtAct article 6, granted sole custody of Caleb JJ. to Heather KK.
Brian JJ. (hereinafter the father) and Heather KK. (hereinafter the mother) are the unwedparents of one son, Caleb JJ. (born in 2005). In January 2006, they stipulated to an order of theTompkins County Family Court (Sherman, J.) wherein the mother and her sister would sharejoint legal custody of Caleb, with the sister initially having primary physical custody, but withsuch custody being gradually transferred to the mother, who was prohibited from removing thechild from Tompkins County without a prior court order. The stipulation and order also includedprovisions for the father and his parents (hereinafter the grandparents)[FN1]to visit with the child, and required the father to complete an alcohol abuse treatment program,after which he could petition Family Court for a modification of custody without any furthershowing of a [*2]change in circumstances. In May 2006, themother regained physical custody of Caleb and, without getting court permission, moved withthe child to Chemung County to avail herself of the financial and emotional support andassistance of her boyfriend and his family.
In June 2006, the first two of these 11 proceedings were commenced with the filing of apetition for modification of custody by the father and a petition by the grandparents seekingtemporary custody of Caleb, as the father was completing an inpatient alcohol abuse treatmentprogram. Both petitions alleged that the child had suffered injuries while in the mother's care.The mother filed two petitions—one of which was in response to the grandparents'petition—seeking sole custody of Caleb. In September 2006, venue of the pendingproceedings was transferred to Chemung County. The father then commenced two newproceedings, one for modification of the existing custody order rendered in Tompkins Countyand another seeking redress for the mother's alleged violation of the January 2006 order based onher move to Chemung County without prior permission of the court. Likewise, the grandparentsfiled an amended petition for temporary custody of Caleb.[FN2]In turn, the mother commenced a new proceeding seeking a delineation of the grandparents'visitation with Caleb.
After the conclusion of fact-finding hearings on all pending petitions, Family Court renderedan oral decision on the record. The court dismissed the grandparents' petitions on the basis thatthey had failed to show extraordinary circumstances and, therefore, did not have standing to seekcustody of Caleb. As between the mother and the father, the court determined that it was inCaleb's best interests to continue to live with the mother in Chemung County and granted themother sole custody. The court retroactively approved the mother's move to Chemung Countyand declined to impose any sanctions for her failure to obtain prior approval from the TompkinsCounty Family Court. A written order followed, awarding the father visitation. The father nowappeals and we affirm.
Preliminarily, we note that, inasmuch as the father was not aggrieved by the dismissal of thegrandparents' custody petitions, he lacks standing to challenge them (see CPLR 5511;D'Ambrosio v City of New York, 55 NY2d 454, 459 [1982]; Matter of Morris v Ciaramitaro, 13AD3d 924, 924 [2004]; see alsoMatter of King v King, 15 AD3d 999, 1001 [2005]). The father also lacks standing tochallenge the court's exclusion of certain letters written by the mother to the father as evidenceoffered by the grandparents and, moreover, has failed to preserve any such challenge byobjecting to the court's ruling at the time it was made. In any event, his arguments in this regardare unpersuasive.
We perceive no abuse of discretion in Family Court's decision to award sole custody to themother. In reviewing the father's petitions, Family Court followed a best interests analysis(see Friederwitzer v Friederwitzer, 55 NY2d 89, 94 [1982]; Matter of Bessette v Pelton, 29 AD3d1085, 1087 [2006]) and properly considered, among other things, "the quality of therespective home environments" and each parent's "relative fitness and ability to provide for andguide the child's intellectual and emotional development" (Matter of Russo v Russo, 257AD2d 926, 927 [1999]). The record reflects that the court focused primarily on the fact that themother was providing an appropriate home for Caleb, had availed herself of a variety of servicesoffered [*3]by the Department of SocialServices—including mental health counseling, alcohol treatment and parentingclasses—and had overcome her past problems (see Matter of Morrow v Morrow, 2 AD3d 1225, 1227 [2003]).Furthermore, while we do not condone the mother's move to Chemung County without priorcourt approval, Family Court properly considered the circumstances of that move, including themother's valid reasons therefor and her prior notice to the father.
Family Court also properly weighed, on the other hand, the father's unwillingness tocommunicate with the mother, to set aside his animosity toward her and to foster her relationshipwith Caleb. In addition, there was a sound and substantial basis in the record for the court'sdetermination that the father and the grandparents had relentlessly and unnecessarily subjectedthe mother to child abuse hotline reports and the child to photo sessions, medical office andhospital emergency room visits, all in an attempt to document the mother's alleged abuse and/orneglect of the child. Ultimately, all of the child's injuries were determined to be normal for anactive toddler and the hotline reports were determined to be unfounded. Also notably, the fathercurrently resides in a one-bedroom apartment and the grandmother testified that she believes hewould need her support were he to gain custody of Caleb (see Matter of Robinson v Cleveland, 42 AD3d 708, 709 [2007]).
Under these circumstances, and according due deference to Family Court's credibilitydeterminations (see Friederwitzer v Friederwitzer, 55 NY2d at 94; Matter of Diffin v Towne, 47 AD3d988, 990 [2008], lv denied 10 NY3d 710 [2008]), we find that Family Court waswell within its discretion in concluding that joint custody would not be in the best interests of thechild and awarding sole custody to the mother (see Matter of Lopez v Robinson, 25 AD3d 1034, 1036-1037[2006]; Matter of Ruller v Berry,19 AD3d 814, 816 [2005], lv denied 6 NY3d 705 [2006]; Reed v Reed, 93AD2d 105, 111-112 [1983], appeal dismissed 59 NY2d 761 [1983]).
We have considered the father's remaining contentions and, to the extent he has standing toraise them, we find them to be without merit.
Rose, J.P., Kane, Kavanagh and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: The grandparents are petitionersin three of the 11 proceedings and respondents in two of the proceedings.
Footnote 2: In December 2006, the fatherand the grandparents each filed additional petitions for temporary custody of Caleb based uponnew allegations of neglect of the child by the mother.