| Matter of Melissa K. v Brian K. |
| 2010 NY Slip Op 02687 [72 AD3d 1129] |
| April 1, 2010 |
| Appellate Division, Third Department |
| In the Matter of Melissa K., Respondent, v Brian K.,Appellant. (And Six Other Related Proceedings.) |
—[*1] Rachel A. Rappazzo, Niskayuna, for respondent. Christina E. Nicolella, Law Guardian, Delanson.
Garry, J. Appeal from an order of the Family Court of Schenectady County (Powers, J.),entered August 7, 2008, which, among other things, granted petitioner's application, in sevenproceedings pursuant to Family Ct Act articles 6 and 8, for custody of the parties' children.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of ason (born in 2000) and a daughter (born in 2003). The parties married in 1999, separated in 2001and, after a hearing on family offense and custody petitions, stipulated to joint custody of theirson. They reconciled approximately one year later and resided together with their children untilthe first of these proceedings was commenced in November 2006. At that time, the mothercommenced proceedings seeking custody of the children and alleging a family offense, and aproceeding seeking modification of the prior joint custody order. The father cross-petitioned forsole legal and physical custody and a temporary order of protection. The father subsequentlycommenced a custody violation proceeding as well as two proceedings alleging violations of atemporary order of protection that had been granted to the mother against him. After apsychological evaluation of both parties and extensive hearings conducted over the course of[*2]more than a year, Family Court dismissed the mother'scustody modification petition,[FN*]but granted her custody petition, awarding her sole legal and physical custody of both childrenand providing the father with scheduled parenting time. The court also granted the father'scustody violation petition. In addition, the court found that the father had committed the familyoffense of harassment in the second degree and issued an order of protection. The father nowappeals.
The father alleges that Family Court erred in failing to grant sole custody to him or, in thealternative, in failing to award joint custody to both parties. In making any custodydetermination, the primary concern is the best interests of the child (see Eschbach vEschbach, 56 NY2d 167, 171 [1982]), to be determined "by reviewing such factors as'maintaining stability for the child, the child's wishes, the home environment with each parent,each parent's past performance, relative fitness, ability to guide and provide for the child'soverall well-being, and the willingness of each parent to foster a relationship with the otherparent' " (Kaczor v Kaczor, 12AD3d 956, 958 [2004], quoting Matter of Smith v Miller, 4 AD3d 697, 698 [2004]). Additionally,the court must consider "the effect of any alleged domestic violence upon the children"(Matter of Kilmartin v Kilmartin, 44 AD3d at 1102; see Domestic Relations Law§ 240 [1] [a]). According the appropriate "great deference" to Family Court's factualdeterminations and assessments of credibility (Matter of Siler v Wright, 64 AD3d 926, 928 [2009]; seeKaczor v Kaczor, 12 AD3d at 958), we agree that joint custody is not feasible.
The record overwhelmingly reveals that the parties' relationship is so tumultuous andacrimonious as to preclude joint decision-making for the benefit of their children. During thependency of the proceedings, the parties were entirely unable to cooperate, communicate, or dealwith one another in a civil fashion; they found it necessary to relay all communication throughattorneys and caseworkers and repeatedly required their assistance or that of the police to resolveeven minor misunderstandings. The record further supports Family Court's determination that thefather's marked hostility for the mother—reflected in such actions as repeated calls topolice and child protective authorities to report her alleged transgressions that, in most cases,proved to be without foundation—was primarily responsible for the parties' inability tocooperate (see Matter of Goldsmith vGoldsmith, 50 AD3d 1190, 1191 [2008]). Thus, the determination that sole custody isrequired is amply supported by the record (see Matter of Martin v Martin, 45 AD3d 1244, 1245-1246 [2007];Matter of Brown v Skalwold, 228 AD2d 749, 751-752 [1996], lv dismissed 89NY2d 860 [1996]).
The record provides the requisite sound and substantial basis for the award of sole custody[*3]to the mother (see Matter of Siler v Wright, 64 AD3dat 928; Matter of Eck v Eck, 33AD3d 1082, 1084 [2006]). The father argues that custody should have been awarded to himbecause the mother has numerous failings that, in his view, render her an unfit parent. Whileseveral of his accusations are refuted or inadequately supported by the record, the evidence doesreveal certain significant shortcomings on the mother's part. However, Family Court thoroughlyaddressed these issues in the course of considering the parties' respective strengths andweaknesses, past performance, and relative fitness as parents (see Matter of Goldsmith vGoldsmith, 50 AD3d at 1192-1193; Matter of Grant v Grant, 47 AD3d 1027, 1028 [2008]). We agreewith Family Court, and the record reveals, that the mother recognizes her mistakes and takesresponsibility for them to a far greater degree than does the father. Further, the evidence supportsthe court's conclusion that the mother, who had been the children's primary caregiver since theirbirth and provided for their needs by caring for them when they were ill, transporting them tomedical appointments, and arranging and supervising the son's counseling, is aware of andattentive to the children's medical and educational needs (see Matter of Grant v Grant, 47AD3d at 1029; Matter of Boulerice vHeaney, 45 AD3d 1217, 1218 [2007]).
Additionally, we agree with Family Court's determination that the mother is the parent moreable to foster meaningful contact between the children and the noncustodial parent (seeMatter of Troy SS. v Judy UU., 69 AD3d 1128, 1133 [2010]; Matter of Marchand v Nazzaro, 68AD3d 1216, 1217 [2009]). In contrast to the unrelieved hostility manifested by the father,the mother described him as a loving parent, praised his involvement with the children,acknowledged that their son missed him, and tried to alleviate this by arranging additionalvisitation, an effort with which the father did not cooperate. Further, although the testimonyreveals that both parties have anger management issues and have engaged in incidents ofdomestic violence, Family Court's determination that the father had verbally and physicallyabused the mother in front of the children throughout their relationship is fully supported by hertestimony, the psychological evaluation, and other credible evidence (see Matter of Wissinkv Wissink, 301 AD2d 36, 38-39 [2002]). Finally, although not determinative, the court'scustody determination was fully supported by the Law Guardians both at trial and on appeal (see Matter of Diffin v Towne, 47AD3d 988, 992 [2008], lv denied 10 NY3d 710 [2008]). We therefore find no basisto disturb the court's "well-supported discretionary determination that the child[ren]'s bestinterests are served by granting the [mother] sole custody, with regular and consistent parentingtime with the [father]" (Matter ofMichael CC. v Amber CC., 57 AD3d 1037, 1041 [2008]).
Next, the father contends that the evidence was insufficient to establish that he committedthe family offense of harassment in the second degree. To prove that he did so, the mother wasrequired to show that the father, with intent to harass, annoy, or alarm her, had subjected her tophysical contact or attempted or threatened such contact (see Penal Law § 240.26[1]; Family Ct Act § 812 [1]; Matter of Gil v Gil, 55 AD3d 1024, 1025 [2008]). In this regard,she alleged that, while she was trying to leave the marital residence during an argument with thefather, he stepped into the stairway and "bodychecked" her by briskly moving his shoulderagainst her, causing her to lose her balance and strike the wall and railing. We disagree with thefather that the mother's description of this encounter at the initial appearance was inconsistentwith that in her petition. While he argues that her account should not have been found to becredible, due deference is to be accorded to Family Court's credibility determinations (Matterof Gil v Gil, 55 AD3d at 1025), and the requisite intent may be inferred from thesurrounding circumstances (see Matter of Christina LL., 233 AD2d 705, 709 [1996],lv denied 89 NY2d 812 [1997]). Thus, a fair preponderance of the evidence supports thecourt's conclusion [*4]that the father committed the familyoffense of harassment in the second degree (see Family Ct Act § 832; Matter of Boua TT. v Quamy UU., 66AD3d 1165, 1166 [2009], lv denied 14 NY3d 702 [2010]).
Finally, the father asserts that he was denied the right to the effective assistance of counsel(see Family Ct Act §§ 261, 262 [a] [v]; Matter of Thompson vGibeault, 305 AD2d 873, 875 [2003]) when his attorney rejected a favorable settlement offeron the family offense petition without first consulting him. The offer was made in open court andon the record. The father's attorney rejected this offer, stating that he intended to prove that themother's allegations were false, despite a clear warning by Family Court that he was pursuing arisky strategy. The father was present to hear the offer, his attorney's rejection and the court'swarning, and the record does not, in any manner, indicate that he disagreed with this decision atthat time or thereafter as his counsel pursued this strategy. We thus find no reason to concludethat his attorney failed to provide him with "reasonable competence in his representation"(Matter of Hudson v Hudson, 279 AD2d 659, 661-662 [2001]).
Cardona, P.J., Lahtinen, Malone Jr. and Stein, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: Family Court found that theprior order had been abandoned by both parties and thereafter treated the custody determinationas if it were an initial proceeding, without determining whether a change of circumstances hadoccurred after the entry of the prior order. This determination was not challenged by either partyon appeal and we find no reason to disturb it, noting that the parties' four-year reconciliation andthe undisputed severe deterioration of their relationship demonstrated a change of circumstancessufficient to justify modification (seeMatter of Kilmartin v Kilmartin, 44 AD3d 1099, 1101 [2007]; Matter of Drew v Gillin, 17 AD3d719, 720 [2005]).