| Matter of Yost-Crawford v Sutton |
| 2009 NY Slip Op 07541 [66 AD3d 1168] |
| October 22, 2009 |
| Appellate Division, Third Department |
| In the Matter of Cathie L. Yost-Crawford, Petitioner, v Shella L.Sutton, Appellant, and Anthony Newhart, Respondent. (Proceeding No. 1.) In the Matter ofAnthony Newhart, Respondent, v Shella L. Sutton, Appellant. (Proceeding No. 2.) (AndAnother Related Proceeding.) |
—[*1] Law Office of Carman M. Garufi, Binghamton (Michael A. Korchak of counsel), forrespondent. Susan B. Marris, Law Guardian, Manlius.
Kavanagh, J. Appeal from an order of the Family Court of Broome County (Pines, J.),entered September 24, 2008, which, among other things, granted petitioner's application, inproceeding No. 2 pursuant to Family Ct Act article 6, for custody of the parties' child.
Respondent Shella L. Sutton (hereinafter the mother) and Anthony Newhart (hereinafter thefather) have a daughter (born in 2002) who lived with the mother in Pennsylvania near the child'sgrandparents and extended family while the father, a member of the military, was stationed inIraq. Upon the father's return to the United States, the mother moved with the child to a locationin Broome County so that she could permanently reside with her paramour. Upon his dischargefrom military service in December 2004, the father resumed his residence in Pennsylvania, buthad regular visits with the child and paid child support.
In February 2008, petitioner Cathie L. Yost-Crawford (hereinafter the maternalgrandmother) filed a petition (proceeding No. 1) for custody of the child alleging that the childhad been consistently neglected and abused while in the mother's care and that, as a result, shehad become the child's primary caretaker. Two weeks later, the father brought his own petition(proceeding No. 2) seeking custody of the child. Family Court initially directed that the motherhave temporary custody, but determined that the father should have extensive access to the childthrough scheduled visitation. Not long after this temporary order was issued, the father filed apetition alleging that the mother had denied him access to the child and refused to comply withthe visitation schedule as contemplated by Family Court's order.[FN1]After a hearing was conducted, Family Court found that the mother had willfully violated theterms of its order by denying the father visitation and awarded custody of the child to the father.The mother now appeals.[FN2]
Because these proceedings called for an initial determination regarding the custody of thechild, Family Court was required to determine what custodial arrangement best served the child'sinterests, taking into account a number of relevant factors, including maintaining the child'sstability, the child's wishes, " 'the home environment with each parent, each parent's pastperformance, relative fitness, ability to guide and provide for the child's overall well-being, andthe willingness of each parent to foster a relationship with the other parent' " (Matter of Holle v Holle, 55 AD3d991, 991-992 [2008], quoting Matter of Anson v Anson, 20 AD3d 603, 604 [2005], lvdenied 5 NY3d 711 [2005]; seeKaczor v Kaczor, 12 AD3d 956, 958 [2004]; Matter of Smith v Miller, 4 AD3d 697, 698 [2004]). At the outset,we note, as found by Family Court, that the mother was "involved in an increasingly chaotic anddysfunctional lifestyle from which the child should be protected." She had, when the hearing wasconducted, acknowledged sharing a trailer with her paramour and at least one other adult, as wellas six dogs and numerous cats. The paramour suffers from tuberculosis, has been diagnosed witha mental illness and, on a number of occasions, physically abused the mother in the child'spresence. The mother admits to having [*2]heated argumentswith the paramour in the child's presence and acknowledges that she has significant angermanagement issues that have contributed to the volatile nature of that relationship. Herconfrontations with her paramour have, on occasion, become so intense that police interventionwas required and, in one instance, resulted in the mother and the child being evicted from thetrailer by the paramour. In addition, the mother is unemployed and has not been able toadequately provide for the child's medical needs, including obtaining basic vaccinations so thatthe child could be properly registered for school. Also, credible evidence was presented at thehearing that the mother refused to bring the child to a dentist even though the child suffered froman abscessed tooth. It was the maternal grandmother who assumed responsibility for obtainingthe necessary vaccinations so that the child could attend school and arranged for her to receiveappropriate dental care. We also note that the mother, by her persistent refusal to comply withFamily Court's order regarding the father's visitation rights, fails to recognize that it is in thechild's best interests that she have a meaningful relationship with her father, as well as othermembers of her immediate family.
As for the father, he enjoys a good relationship with the child's grandparents and othermembers of her extended family and has made a sincere effort to insure that they are animportant part of the child's daily activities when she is entrusted to his care. In that regard, whenthe child is with him, the maternal grandmother provides day care as needed and assists thefather in seeing to her medical needs. Despite the acrimony that exists between the father and themother, he has sought to cultivate a meaningful relationship between the mother and herdaughter establishing that he is aware that such a relationship is in the child's best interests. He isgainfully employed, has health insurance that provides coverage for the child and is presentlytaking college courses in pursuit of a higher degree. Considering the totality of the circumstancesand according deference to Family Court's assessment of credibility of the witnesses whoappeared and testified (see Matter ofOmahen v Omahen, 64 AD3d 975, 977 [2009]; Matter of Samuel v Samuel, 64 AD3d 920, 921 [2009]; Matter of Calandresa v Calandresa, 62AD3d 1055, 1056 [2009]; Matterof Clupper v Clupper, 56 AD3d 1064, 1066 [2008]), we conclude that it properlyweighed the applicable factors in ascertaining the best interests of the child and reached adetermination that has a sound and substantial basis in the record (see Matter of Smith v Smith, 61 AD3d1275, 1277-1278 [2009]; Matter ofEck v Eck, 57 AD3d 1243, 1245 [2008]).
Finally, as for Family Court's decision that the paramour not be present when the mothervisits with the child, we note that the paramour did not testify or attend any of the hearings and,as such, has shown little interest in developing any type of relationship with the child. We alsotake note of the history of the paramour's relationship with the mother, which compels theconclusion that any contact between the paramour and the child is not in the child's best interests.Therefore, we find no reason to disturb that part of Family Court's order directing that themother's visitation with the child shall occur outside the presence of her paramour.
Mercure, J.P., Spain, Malone Jr. and McCarthy, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote 1: The mother also filed aviolation petition against the father, which Family Court summarily dismissed.
Footnote 2: The mother has abandoned anychallenge to Family Court's finding that she had willfully violated the court's order by failing toaddress this issue in her submissions on this appeal (see Matter of Filippelli v Chant, 40 AD3d 1221, 1222 n [2007]).