| Matter of Miller v Murray |
| 2009 NY Slip Op 03425 [61 AD3d 1295] |
| April 30, 2009 |
| Appellate Division, Third Department |
| In the Matter of Brian J. Miller, Appellant, v Michelle D. Murray,Formerly Known as Michelle D. Smith, Respondent, et al., Respondent. (And Two OtherRelated Proceedings.) |
—[*1] Bridget A. O'Connor, Binghamton, for Michelle D. Murray, respondent. Peter Fee, Law Guardian, Vestal.
Mercure, J.P. Appeal from an order of the Family Court of Broome County (Connerton, J.),entered April 3, 2008, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent Michelle D. Murray (hereinafter themother) are the unmarried parents of a child born in 2002; respondent Debra J. Parisella is thechild's paternal grandmother, who had physical custody of the child for approximately two yearsafter the parents separated. The underlying facts are more fully set forth in our prior decisionreversing an order of Family Court that granted the mother's petition seeking sole custody of thechild, with visitation to the father and Parisella (Matter of Murray v Parisella, 41 AD3d 902 [2007]). Inasmuch asthe court had not addressed the father's petition seeking joint custody and primary physicalcustody, we remitted the matter to Family Court to conduct a best interests analysis with respectto the father's petition (id. at 903-904). Following an extensive hearing, [*2]Family Court granted the mother and father joint custody of thechild, awarding primary physical custody to the mother. In addition, the court granted the fatherexpanded visitation and directed the parents to support "a continued relationship" between thechild and Parisella. The father appeals, and we now affirm.
We reject the argument of the father and Law Guardian that Family Court failed to perform aproper best interests analysis in determining whether the father should be awarded physicalcustody of the child, as directed by this Court's prior order remitting the matter. As explained inour prior decision, a determination of the child's best interests requires the consideration offactors "such as maintaining stability for the child, the child's wishes, the home environmentwith each parent, each parent's past performance, relative fitness, ability to guide and provide forthe child's overall well-being, and the willingness of each parent to foster a relationship with theother parent" (Matter of Smith vMiller, 4 AD3d 697, 698 [2004]; see Eschbach v Eschbach, 56 NY2d 167, 172[1982]; Matter of Fullam v Fullam,39 AD3d 897, 897 [2007], lv denied 9 NY3d 802 [2007]). Here, although FamilyCourt acknowledged the mother's troubling actions in abruptly changing the child's residenceand school without informing the father, as well as the father's improving parenting skills and therelative fitness of both parents, it concluded that the mother is more likely to provide a stable andappropriate home.
In that regard, Family Court noted that the father has a history of drug use and violentbehavior toward the mother, and recently assaulted his paramour, who resides with him. Therewas also evidence that the father's residence was recently burglarized by friends of anacquaintance of the father in an act of retaliation for the father's use of a racial slur during anargument; evidently, two individuals kicked in the door to the father's residence while he wassleeping, beat him and then stole food from his freezer. The mother testified that, following theburglary, the father's door was defective and would not remain closed unless locked, creating asafety concern for the child. Finally, although the father asserts that the mother refused to pursuetreatment for the child's medical problems, there is evidence that the mother remained in contactwith the child's doctors regarding the problems and has taken appropriate action to remedy them.In any event, there was further proof that although cigarette smoking posed a particular healthhazard to the child, the father's paramour continued to smoke inside his residence while the childwas present.
Under these circumstances and according deference to Family Court's unique ability toassess the witnesses' credibility, we conclude that Family Court's determination is supported by asound and substantial basis in the record and, thus, it will not be overturned (see Matter of Cree v Terrance, 55AD3d 964, 967 [2008], lv denied 11 NY3d 714 [2008]; Matter of Grayson v Fenton, 13 AD3d914, 915 [2004]; see also Matter of Darrow v Burlingame, 298 AD2d 651, 652[2002]). The father's remaining arguments have been considered and found to be lacking inmerit.
Spain, Kavanagh, Stein and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.