| Matter of Larkin v White |
| 2009 NY Slip Op 05964 [64 AD3d 707] |
| July 21, 2009 |
| Appellate Division, Second Department |
| In the Matter of Alyse Larkin, Appellant, v Caleb J. White,Respondent. |
—[*1] Joan C. Salwen, Scarsdale, N.Y., for respondent. Joseph P. Abbenda, Glen Cove, N.Y., attorney for the child.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appealsfrom an order of the Family Court, Nassau County (Eisman, J.), dated December 19, 2008,which, after a hearing, denied her petition for custody of the parties' child, and granted thefather's cross petition for custody of the child. By decision and order on motion of this Courtdated January 15, 2009 [2009 NY Slip Op 60934(U)], enforcement of the order was stayedpending hearing and determination of the appeal.
Ordered that the order is reversed, on the facts and in the exercise of discretion, withoutcosts or disbursements, the mother's petition for custody of the child is granted, the father's crosspetition is denied, and the matter is remitted to the Family Court, Nassau County, for furtherproceedings consistent herewith.
The subject of this custody proceeding is six-year-old Aidan, who has lived with his motherhis entire life. At the time of Aidan's birth, the parents, who never married, lived together in anapartment on Long Island. However, the father left when Aidan was eight months old, andmoved back to his parents' home in Westchester County. During the next 2½ years, thecouple remained in an "on again, off again" relationship, which finally terminated in January2006. According to the mother, a major factor in her decision to end her relationship with thefather was his alleged alcohol problem, which at times affected his behavior. In October 2007 themother filed a petition seeking custody of Aidan, and the father cross-petitioned for custody. Atthe conclusion of a hearing, which included the testimony of the parents, several relatives, acourt-appointed forensic evaluator, the father's treating psychologist, the child's pediatrician, andtwo teachers, the Family Court awarded sole custody to the father. We reverse.
The court's paramount concern in a custody proceeding is the best interests of the child(see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Friederwitzer vFriederwitzer, 55 NY2d 89, 94 [1982]). Among the factors to be considered in reaching adetermination that promotes the child's best interests are "the original placement of the child, thelength of that placement, the child's desires, [and] the relative fitness of the parents" (Klat vKlat, 176 AD2d 922 [1991]; see Eschbach v Eschbach, 56 NY2d at 172; Matter of Summer A., 49 AD3d722, 726 [2008]; Matter of Sullivan v Sullivan, 190 AD2d [*2]852, 853 [1993]). This Court's authority in custody determinationsis as broad as that of the hearing court (see Matter of Louise E.S. v W. Stephen S., 64NY2d 946, 947 [1985]), and while we are mindful that the hearing court has an advantage inbeing able to observe the demeanor and assess the credibility of witnesses, we "would beseriously remiss if, simply in deference to the finding of a Trial Judge" we allowed a custodydetermination to stand where it lacks a sound and substantial basis in the record (Matter ofGloria S. v Richard B., 80 AD2d 72, 76 [1981]; see Matter of Said v Said, 61 AD3d 879 [2009]; Matter ofSalvati v Salvati, 221 AD2d 541 [1995]).
In awarding the father sole custody, the hearing court failed to afford sufficient weight toAidan's need for stability, and the impact of uprooting him from his current home on LongIsland, where he attends school and is engaged in many activities including swimming, soccer,and football, and relocating him to Westchester County (see Matter of Lightbody v Lightbody, 42 AD3d 537, 538 [2007];Matter of Bryant v Nazario, 306 AD2d 529 [2003]; Matter of Salvati v Salvati,221 AD2d at 542; Matter of Lobo v Muttee, 196 AD2d 585, 587-588 [1993]). By allaccounts, the mother is a caring parent, who is actively involved in Aidan's school activities, andseeks appropriate treatment for the child's asthma and attention deficient hyperactivity disorder.Moreover, the mother has been Aidan's primary caretaker since birth (see Matter of Fallarino v Ayala, 41AD3d 714, 715 [2007]; Matter of Plitnick v Oliver, 249 AD2d 399, 400 [1998];Matter of Wolfer v Wolfer, 183 AD2d 903 [1992]). Furthermore, although the father is aloving parent who enjoys a close bond with his young son, the evidence presented at the hearingindicates that he has suffered in the past from problems with alcohol and depression. Under thesecircumstances, the best interests of the child would best be served by preserving the status quo,and leaving Aidan in the custody of his mother (see Matter of Peroglu v Baez, 54 AD3d 416, 418 [2008]).
We note that the Family Court agreed with the forensic evaluator's opinion that the motherwas overly critical of the father, and that her negative opinion of him would have an adverseimpact on her ability to be a good co-parent and promote a close relationship between Aidan andhis father. Although there is no evidence that the mother actually has attempted to disturbAidan's close relationship with his father, in view of the concerns expressed by the forensicevaluator and the Family Court, we deem it appropriate to caution the mother that interference inthe child's relationship with the noncustodial parent is "so inconsistent with the best interests ofthe child as to per se raise a strong probability that the offending party is unfit to act as custodialparent" (Matter of Chebuske v Burnhard-Vogt, 284 AD2d 456, 458 [2001]; see Matter of Perez v Sepulveda, 21AD3d 558, 559 [2005]). "Thus, a change [in] custody is appropriate if her conduct ascustodial parent deliberately frustrates, denies, or interferes with the father's visitation rights"(Matter of Chebuske v Burnhard-Vogt, 284 AD2d at 458; see Matter of Wolfer vWolfer, 183 AD2d 903 [1992]; Matter of Coyne v Coyne, 150 AD2d 573 [1989]).
We deem it appropriate that the father's liberal visitation continue. Accordingly, we remit thematter to the Family Court, Nassau County, for further proceedings, including the issuance of apermanent visitation order, in which the Family Court may continue the visitation arrangementset by order of the Family Court dated May 9, 2008, with any appropriate modifications. Mastro,J.P., Santucci, Eng and Lott, JJ., concur.
Motion by the respondent on an appeal from an order of the Supreme Court, Nassau [*3]County, dated December 19, 2008, inter alia, to strike statedportions of the appellant's reply brief on the ground that they refer to matter dehors the record.By decision and order on motion of this Court dated April 22, 2009 [2009 NY Slip Op70281(U)], the motion was held in abeyance and was referred to the Justices hearing the appealfor determination upon the argument or submission of the appeal.
Upon the papers filed in support of the motion, the papers filed in opposition thereto andupon the argument of the appeal, it is,
Ordered that the motion is granted to the extent that those portions of the appellant's replybrief which refer to matter dehors the record are stricken and have not been considered in thedetermination of the appeal, and the motion is otherwise denied. Mastro, J.P., Santucci, Eng andLott, JJ., concur.