| Matter of Richardson v Alling |
| 2010 NY Slip Op 00320 [69 AD3d 1062] |
| January 14, 2010 |
| Appellate Division, Third Department |
| In the Matter of Daniel R. Richardson, Respondent, v HeatherAlling, Appellant. |
—[*1] Paul M. Deep, Utica, for respondent. Sandra M. Colatosti, Law Guardian, Albany.
Malone Jr., J. Appeal from an order of the Family Court of Madison County (DiStefano, J.),entered December 11, 2008, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, for custody of the parties' child.
The parties are the parents of one child (born in 2007) and, pursuant to an informalarrangement, respondent (hereinafter the mother) had been the child's primary custodian sincehis birth. In January 2008, petitioner (hereinafter the father) commenced this proceeding seekingcustody alleging that the mother's home was an unsafe environment for the child. Following atrial, Family Court awarded the parties joint legal custody, with primary physical custody to thefather. The mother appeals.
In making an initial custody determination, as here, Family Court was required to considerthe best interests of the child by reviewing, among other things, each parent's relative fitness, thequality of the respective home environment, each parent's ability to maintain stability for thechild and each parent's ability to provide for the child's mental and physical well-being (see Matter of Smith v Smith, 61 AD3d1275, 1276 [2009]; Kaczor vKaczor, 12 AD3d 956, 958 [2004]). The record reveals that, although the motherunderstood that cigarette smoke was dangerous to the child's physical well-being, she smoked inthe child's presence and stopped only when the court issued a temporary order prohibiting herfrom doing so. However, she continued [*2]to smoke cigarettesoutside the child's presence, despite being pregnant with her second child. Notably, theuncontradicted testimony at trial established that the child at issue has an unspecified medicalcondition that requires the occasional use of a nebulizer. The mother testified that the trailer inwhich she and the child had lived with her boyfriend was deemed uninhabitable after a kerosenespill and she admitted that there had also been problems with the heat. In addition, there was asevere mold problem, which the mother did not consider detrimental to the child's well-being, ashis bedroom was not adjacent to the mold-damaged room. The mother is unemployed and relieson her current boyfriend for support, although she admitted that they often argued and hadbroken up many times. The mother and the child also spend a considerable amount of time withthe child's maternal grandmother and, when there, the child is exposed to the mother's formerstepfather, who lives next door and often visits. The former stepfather has an extensive history ofserious domestic violence toward the grandmother, the mother and the mother's brothers. Despitethis history, the mother stated that she was not concerned about the child being around thestepfather provided that her mother was also there.
As for the father, he is employed and lives with his girlfriend of two years—who isalso employed—and together they maintain a two-bedroom residence where they live withtheir own infant child. While not singly a determinative factor, neither the father nor hisgirlfriend smokes cigarettes (see Matter of Lizzio v Jackson, 226 AD2d 760, 761[1996]). Although the father admitted that he and his girlfriend once engaged in a verbalaltercation in which he called the police to remove her from the home, this was an isolatedincident and, overall, the father can provide the child with a more stable home environment.Finally, even though the father testified that the child would be cared for by the paternalgrandmother or one of the paternal great-grandmothers while he was at work, whereas themother has chosen not to work and to stay at home with the child, the amount of time the childwill spend in day care is just one of many factors to consider (see e.g. Matter of Reichenberger v Skalski, 24 AD3d 1101,1102-1103 [2005]).
Upon our review of the record and according deference to Family Court's factual findingsgiven its unique ability to assess the parties' credibility, we cannot say that the court failed toproperly weigh the relevant factors or that its determination lacks a sound and substantial basisin the record (see Matter of Siler vWright, 64 AD3d 926, 928 [2009]; Matter of Smith v Smith, 61 AD3d at 1278).We are unpersuaded by the mother's claim that she should be appointed the caregiver for thechild while the father is at work, an arrangement that was also requested at trial but rejected byFamily Court.
Peters, J.P., Rose, Stein and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.