| Matter of Cukerstein v Wright |
| 2009 NY Slip Op 09327 [68 AD3d 1367] |
| December 17, 2009 |
| Appellate Division, Third Department |
| In the Matter of Joshua Cukerstein, Respondent, v AngelicaWright, Appellant. |
—[*1] Ann M. Weaver, Red Hook, for respondent. Pamela Bleiwas, Law Guardian, Ithaca.
McCarthy, J. Appeal from an order of the Family Court of Columbia County (Nichols, J.),entered June 5, 2008, which, among other things, granted petitioner's application, in a proceedingpursuant to Family Ct Act article 6, for custody of the parties' children.
Petitioner (hereinafter the father) and respondent (hereinafter the mother), the parents of twominor children (born in 2000 and 2004), never married and ended their increasingly tumultuousrelationship in 2005 after the mother assaulted the father. In October 2007, when the motherthreatened the father and his girlfriend, the father filed a family offense petition and formallysought custody of the children. Following a hearing, Family Court found that the mother hadcommitted a family offense, awarded sole legal and residential custody to the father and limitedthe mother's visitation. The mother appeals both the custody determination and the restrictionson visitation.
Although the mother appeared on the initial hearing date and testified during the father'scase-in-chief, she failed to appear when the hearing was scheduled to continue. Her attorney hadno explanation for her failure to appear, but continued to advocate vigorously on the mother'sbehalf in her absence. At the conclusion of the hearing, the mother's attorney requested anadjournment in order to obtain further testimony from her client, which Family Court denied.[*2]We note that the mother had been evicted from her apartmentin January 2009 and failed to provide her attorney with updated contact information. Under thecircumstances, Family Court did not abuse its discretion in refusing to adjourn the hearing(see CPLR 4402; Matter ofSteven B., 6 NY3d 888 [2006]; Matter of Heyer v Heyer, 112 AD2d 539, 540[1985]; Matter of Michael David W., 101 AD2d 695 [1984], lvs dismissed 62NY2d 604, 942 [1984]; cf. Matter of Jackson v Lee, 96 AD2d 760 [1983]).
Turning to the merits of the custody determination, Family Court was required to evaluatethe best interests of the children, considering such factors as the children's ages and wishes, andthe relative fitness, stability, past performance, and home environment of the parents, as well astheir ability to guide and nurture the children and foster a relationship with the other parent (see Matter of Holle v Holle, 55 AD3d991, 991-992 [2008]; Matter ofStreid v Streid, 46 AD3d 1155, 1156 [2007]). Although the parties informally sharedcustody for a period of time, the father assumed primary responsibility for the care and welfareof the children as the mother grew increasingly unreliable. In the time since the parties ceasedcohabitation, the father and his family have provided a stable and secure home environment forthe children. The father has maintained steady employment and consistently provided for thehealth, welfare and educational needs of the children. On the other hand, the mother has usedcocaine and abused prescription medication to the point that family and friends have expressedconcern for her physical and mental well-being. She lost her job and her apartment and failed toadequately plan and provide for the children. The award of custody to the father is thereforesupported by a sound and substantial basis in the record (see Malcolm v Jurow-Malcolm, 63 AD3d 1254, 1256 [2009];Matter of Goodale v Lebrun, 307 AD2d 397, 398 [2003]), even without the negativeinference that Family Court was permitted to draw when the mother refused to answer a questionrelating to a pending misdemeanor charge, invoking her right against self-incrimination underthe Fifth Amendment (see Dolezal v Dolezal, 218 AD2d 682 [1995]). In any event,Family Court does not appear to have relied on the inference in rendering its determination.
Family Court also properly determined that threats made by the mother constituted a familyoffense. The father testified that the mother came to his place of employment to harass him andthreatened to harm or have someone harm him and his girlfriend. The father and his mother bothtestified that, later that same day, the mother came to their home and again threatened to havesomeone harm the father. These events took place with one or both children present. The father'sprior experience with the mother's assaultive behavior made the threats credible. There is nomerit to the mother's argument that her verbal threats constituted protected speech (see Matter of Corey v Corey, 40 AD3d1253, 1255 [2007]). The family offense, namely, harassment in the second degree(see Penal Law § 240.26 [3]), was established by a fair preponderance of theevidence (see Family Ct Act § 812 [1]; § 832; Matter of Boulerice v Heaney, 45AD3d 1217, 1218-1219 [2007]; Matter of Draxler v Davis, 11 AD3d 760, 760-761 [2004]).
Although the record does not indicate that the mother is without affection for her children,her actions as a parent have been irresponsible. On one occasion, while taking the children forice cream, she was detained on an outstanding warrant and the children were transported to thefather's home in a police car. During the time the parties shared custody by informal agreement,the mother's exercise of her time with the children became increasingly erratic, impulsive anddiminished in duration. Given the mother's poor parenting skills, financial instability, and theconcern regarding her use of cocaine and prescription medications, her assault conviction andher threatening conduct against the father, we find no basis for disturbing the [*3]restrictions that Family Court imposed on the mother's visitation(see Matter of Pettengill v Kirley,25 AD3d 935, 936 [2006]; Matterof Custer v Slater, 2 AD3d 1227, 1228 [2003]).
Peters, J.P., Rose, Kane and Kavanagh, JJ., concur. Ordered that the order is affirmed,without costs.