| Matter of Marchand v Nazzaro |
| 2009 NY Slip Op 08922 [68 AD3d 1216] |
| December 3, 2009 |
| Appellate Division, Third Department |
| In the Matter of Jennifer J. Marchand, Respondent, v Frank A.Nazzaro, Appellant. (And Another Related Proceeding.) |
—[*1] Andrew Kossover, Public Defender, Kingston (Mari Ann C. Sennett of counsel), forrespondent. Marion B. Cocose, Law Guardian, Bearsville.
Lahtinen, J. Appeal from an order of the Family Court of Ulster County (McGinty, J.),entered January 22, 2009, which, among other things, granted petitioner's application, in aproceeding pursuant to Family Ct Act article 6, for custody of the parties' children.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents oftwo daughters, born in 1997 and 1999. The falling apart of their relationship has resulted inmyriad proceedings (see e.g. Matter ofMarchand v Nazzaro, 55 AD3d 968, 968 [2008]). As currently relevant, the motherpetitioned and the father cross-petitioned for custody of the children. Temporary orders that wereissued while the custody proceedings were pending granted the mother sole legal and physicalcustody of the children, with six to eight hours per week of visitation for the father. Followingfact-finding and Lincoln hearings, Family Court rendered an extensive written decisionin which it, among other things, awarded the mother sole legal and physical custody, andpermitted the father two hours of weekly visitation. The father appeals.[*2]
We affirm. In making this custody determination,"Family Court was required to consider the best interests of the child[ren] by reviewing suchfactors as maintaining stability for the child[ren], the child[ren]'s wishes, the home environmentwith each parent, each parent's past performance, relative fitness, ability to guide and provide forthe child[ren]'s overall well-being, and the willingness of each parent to foster a relationship withthe other parent" (Matter of Smith vSmith, 61 AD3d 1275, 1276 [2009] [internal quotation marks and citations omitted]; see Matter of Holle v Holle, 55 AD3d991, 991-992 [2008]; Matter ofHissam v Mackin, 41 AD3d 955, 956 [2007], lv denied 9 NY3d 809 [2007]). "'Family Court's determination is entitled to great deference from this Court as it had theadvantage of hearing the witnesses and weighing their credibility and will only be set aside if itlacks a sound and substantial basis in the record' " (Matter of Barndollar v Barndollar,234 AD2d 858, 859 [1996], quoting Matter of Nicotera v Nicotera, 222 AD2d 892, 893[1995]; see Matter of Wentland vRousseau, 59 AD3d 821, 822 [2009]).
As discussed at length in Family Court's decision, the father has had significant mentalhealth issues. Further, he has no income and apparently has no intention of seeking a paying jobdespite being capable of working. He indicated that he plans to survive on a barter system. Hehas not contributed financially to the children's living expenses. His current living arrangementsare inadequate for anything other than short visits by the children and he had no viable plan toimprove that situation. The record supports Family Court's observation that the father's visitationwith his daughters sometimes did not include age-appropriate activities and he seemed unable toset aside his activities to focus upon the children. When he was residing in the family residence,his apparent compulsion to hoard things created a house that was so cluttered as to be virtuallyunlivable and the children were embarrassed to have friends visit. There was evidence that, sincehe has stopped residing with the children, their social skills and interaction with others haveimproved. The mother has a job, she provides the income for the family's expenses, and she hasbeen actively and consistently involved in all aspects of the children's lives. The mother hasshown efforts at moving ahead and encouraging a continued role of the father in the children'slives, whereas the father has remained unduly fixated on the mother's past shortcomings. Whilethere was conflicting evidence on some issues, we accept Family Court's credibilitydeterminations and, the record as a whole, provides a sound and substantial basis to supportFamily Court's decision regarding both custody and the amount of visitation permitted.
Cardona, P.J., Spain, Stein and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.