| Matter of Marrero v Centeno |
| 2010 NY Slip Op 01967 [71 AD3d 771] |
| March 9, 2010 |
| Appellate Division, Second Department |
| In the Matter of Robert Marrero, Respondent, v AdaCenteno, Appellant. In the Matter of Ada Centeno, Appellant, v Robert Marrero,Respondent. |
—[*1] Veronica J. Young, New City, N.Y., attorney for the child.
In related proceedings pursuant to Family Court Act article 6, the mother appeals, as limitedby her brief, from so much of an order of the Family Court, Rockland County (Christopher, J.),dated March 27, 2009, as, after a hearing, granted the father's petition for sole custody of theparties' child and, in effect, denied that branch of her cross petition which was for sole custody ofthe parties' child.
Ordered that the order is reversed insofar as appealed from, on the law and in the exercise ofdiscretion, without costs or disbursements, the father's petition for sole custody of the parties'child is denied, that branch of the mother's cross petition which was for sole custody of theparties' child is granted, and the matter is remitted to the Family Court, Rockland County, forfurther proceedings consistent herewith.
The parties are the parents of the subject child, Summer, who was born in 2001. The partiesnever married, and ended their relationship when the child was an infant. Thereafter, the motherand the child resided in the Bronx, and the father resided in Rockland County with his parents.There was no order awarding custody to either parent.
In April 2006 the mother, her boyfriend, and the child moved from New York City to AltaVega, Puerto Rico. According to the mother, she moved because the cost of living in Puerto Ricowas less than in New York City, she could more easily provide for the child financially in PuertoRico, and she would have more time for the child in Puerto Rico because she could work fewerhours there. The child attended kindergarten and first grade in Puerto Rico. The father was awareof the mother's relocation to Puerto Rico, and the paternal grandfather, who also had a home inPuerto Rico, attended the child's kindergarten graduation. In addition, the child spent thesummers of 2006 and 2007 in Rockland County with her paternal grandparents.
In January 2008 the mother and the child returned to New York City because the mother hadcommenced an action, on behalf of the child, to recover damages for personal injuries allegedly[*2]resulting from the child's exposure to lead paint (hereinafterthe lawsuit). The mother and the paternal grandparents agreed that the child would reside withthe paternal grandparents and attend school in Rockland County while the lawsuit was pending,and that the mother would return to Puerto Rico with the child once the lawsuit was completed.During this time, the mother lived in the Bronx with her sister, and visited with the child on theweekends.
In May 2008, after the lawsuit was settled in the child's favor, the mother announced herintent to return to Puerto Rico with the child and informed the paternal grandparents of herexpected departure date. However, on or about June 19, 2008, the father commenced the instantchild custody proceeding, alleging, inter alia, that in June 2007, the mother "voluntarily gave[the] child to [the father] to raise." The father thereafter took the child out of school and deprivedthe mother of access to the child. The mother subsequently filed a cross petition seeking, interalia, custody of the child. The Family Court appointed an attorney for the child, and a forensicevaluator was appointed to interview the parties, the paternal grandparents, the mother's sister,and the child. The forensic evaluator did not offer an opinion as to which parent should beawarded custody, but submitted a written report to the Family Court. Following a hearing inwhich the Family Court heard testimony from the parties, the forensic evaluator, and from amember of the Rockland County Probation Department, the Family Court, among other things,granted the father's petition for sole custody of the child and, in effect, denied that branch of themother's cross petition which was for sole custody of the child. We reverse the order insofar asappealed from.
As an initial matter, contrary to the mother's contention, the Family Court applied the correctstandard to the father's custody petition. Since there was no prior custody order in effect, thefather was not required to show a change in circumstances justifying a change in custody (see Matter of Louis M. v Administrationfor Children's Servs., 69 AD3d 633 [2010]; Matter of Neail v Deshane, 19 AD3d 758, 758 n [2005]).
There is "no prima facie right to the custody of the child in either parent" (DomesticRelations Law § 70 [a]; § 240 [1] [a]; see Friederwitzer v Friederwitzer, 55NY2d 89 [1982]; Matter of Riccio vRiccio, 21 AD3d 1107 [2005]). The essential consideration in making an award ofcustody is the best interests of the child (see Friederwitzer v Friederwitzer, 55 NY2d at94; Matter of McIver-Heyward vHeyward, 25 AD3d 556 [2006]). "Factors to be considered include the quality of thehome environment and the parental guidance the custodial parent provides for the child, theability of each parent to provide for the child's emotional and intellectual development, thefinancial status and ability of each parent to provide for the child, the relative fitness of therespective parents, and the effect an award of custody to one parent might have on the child'srelationship with the other parent" (Mohen v Mohen, 53 AD3d 471, 473 [2008] [citations and internalquotation marks omitted]). This Court's authority in custody determinations is as broad as that ofthe hearing court (see Matter of Louise E.S. v W. Stephen S., 64 NY2d 946, 947 [1985]),and while we are mindful that the hearing court has an advantage in being able to observe thedemeanor and assess the credibility of witnesses, we "would be seriously remiss if, simply indeference to the finding of a Trial Judge," we allowed a custody determination to stand where itlacks a sound and substantial basis in the record (Matter of Gloria S. v Richard B., 80AD2d 72, 76 [1981]; see Matter ofLarkin v White, 64 AD3d 707, 708-709 [2009]).
The Family Court's determination to grant the father's petition for sole custody of the childand, in effect, to deny that branch of the mother's cross petition which was for sole custody of thechild lacks a sound and substantial basis in the record and, thus, cannot be upheld. The FamilyCourt gave insufficient weight to the fact that the mother has been the child's primary careprovider since the child's birth, providing for both the child's emotional and intellectualdevelopment (see Eschbach v Eschbach, 56 NY2d 167, 172 [1982]; cf. Matter of Dwyer-Hayde v Forcier,67 AD3d 1011, 1012 [2009]; Kaplan v Kaplan, 21 AD3d 993, 995 [2005]). The forensicevaluator testified that it was clear that the mother had always provided for the child, and that thechild was very healthy. The attorney for the child described the child as smart and stated that thiswas due primarily to the mother's care. The [*3]mother testifiedthat she had a number of jobs in New York City to support the child and that when she moved toPuerto Rico in April 2006, she continued to work to support the child. The evidence adduced atthe hearing demonstrates that the child has been in the custody of the mother for most of her life,that the mother is a fit parent, and that the child has thrived in the mother's care (seeEschbach v Eschbach, 56 NY2d at 171).
In contrast, there is no evidence in the record that the father sought to have any relationshipwith the child prior to June 2008. This Court's review of the record supports the conclusion that,although the father resided in his parents' home, it was the paternal grandparents who tended tothe child's daily needs during the time that the child resided with them. While the recordindicates that the mother was awarded child support, the father admitted at the hearing that heowed the mother approximately $40,000 in child support arrears, which demonstrated his pastfailure to provide for the child. The father also admitted that he was incarcerated in 2006 forwilfully failing to pay child support.
Furthermore, the Family Court failed to afford sufficient weight to evidence which indicatedthat the father, who had an admitted history of drug abuse, repeatedly avoided drug testingduring the pendency of the custody matter (see Matter of LaFountain v Gabay, 69 AD3d 994 [2010]; Matter of VanDee v Bean, 66 AD3d1253 [2009]; cf. Matter of Larkin vWhite, 64 AD3d 707 [2009]). The record is replete with evidence that the fatherengaged in a pattern of behavior with the intent to frustrate court-ordered urine drug tests andhair follicle tests. Indeed, during the hearing, by order dated February 27, 2009, the Family Courtadjudicated the father in contempt for willfully violating a prior order of the same court directinghim, inter alia, to comply with forensic hair analysis for the purpose of determining whether hewas abusing drugs. In addition, the evidence adduced at the hearing established that the mother,not the father, would better foster the relationship with the other parent because the mother hasdone so in the past. Under the circumstances, the Family Court placed undue weight on thechild's desire to remain in New York City. We note that, at the time of the hearing, the child wasseven years old. "While not determinative, the child's expressed preference is some indication ofwhat is in the child's best interests. Of course, in weighing this factor, the court must consider theage and maturity of the child and the potential for influence having been exerted on the child"(Eschbach v Eschbach, 56 NY2d at 173). The forensic evaluator testified that while thechild expressed a desire to remain in New York, the evaluator believed that the child's desire waspremised upon the mother remaining in New York, as the child's experience was that the motherhad always been in New York.
Under the unique circumstances of this case, and upon consideration of the relevant factors,we find that it is in the child's best interest to be in the custody of her mother, rather than in thecustody of her father. Since the child currently resides in New York, and the mother in PuertoRico, the transfer of physical custody shall not take place until the child completes the currentschool year in New York, or the mother moves back to New York on the condition that the childcompletes the current school year.
In light of our award of custody to the mother, the parties should share visitation with thechild during the summer of 2010. Thereafter, the father should be awarded visitation with thechild for most of the Christmas vacation, liberal visitation during other holidays, and additionalvisitation as can be agreed upon by the parties or set by the court. Accordingly, we remit thematter to the Family Court, Rockland County, for further proceedings, including the issuance ofa permanent visitation order, and an order which sets the date that the transfer of physicalcustody shall occur. Fisher, J.P., Angiolillo, Leventhal and Lott, JJ., concur.