| Matter of Dana A. v Martin B. |
| 2010 NY Slip Op 02689 [72 AD3d 1136] |
| April 1, 2010 |
| Appellate Division, Third Department |
| In the Matter of Dana A., Respondent, v Martin B., Appellant.(And Two Other Related Proceedings.) |
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Mercure, J.P. Appeals (1) from an order of the Family Court of Tompkins County (Rowley,J.), entered October 21, 2008, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 8, for an order of protection, and (2) from an order of said court, enteredJanuary 21, 2009, which, among other things, granted petitioner's application, in twoproceedings pursuant to Family Ct Act article 6, for custody of the parties' child.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of achild born in 2003. In May 2007, the mother filed a family offense petition alleging that thefather threatened her in the course of a dispute at the family residence, and Family Court issued atemporary order of protection. Thereafter, the mother petitioned, and the father cross-petitioned,for custody of the child. Following a combined hearing on the family offense and custodypetitions, Family Court granted the mother sole custody, with specified visitation to the father.Family Court also granted the family offense petition and issued a permanent order of protectionwith regard to the mother. The father appeals from both the order of protection and custody[*2]order.[FN*]
We affirm. In determining custody, Family Court was required to assess the best interests ofthe child by considering factors such as the child's age and wishes, and the parents' relativefitness, stability and previous performance, as well as their respective home environments andabilities to guide the child, provide for his well-being, and encourage his relationship with theother parent (see Matter of Cukerstein vWright, 68 AD3d 1367, 1368 [2009]; Matter of Marchand v Nazzaro, 68 AD3d 1216, 1216 [2009]; Matter of Holle v Holle, 55 AD3d991, 991-992 [2008]). Here, the record reflects that the child has a good relationship withboth parents. Family Court credited the testimony of the mother and others, however, that shehad been the child's primary caregiver. The mother further indicated a willingness to put thechild's interests ahead of her own and to encourage his relationship with the father. In contrast,the father was exceedingly bitter towards the mother and engaged in behavior that called intoquestion his ability to make appropriate decisions for the child and promote the child'srelationship with the mother. As such, a court-appointed psychologist opined that joint custodywould be inappropriate and that the mother would be a more suitable guardian, a viewpointshared by the Law Guardian.
Contrary to the father's contentions, Family Court accorded appropriate weight to thepsychologist's opinion, which was supported by the results of psychological tests conducted bythe psychologist and other mental health professionals (see Matter of Goodale v Lebrun,307 AD2d 397, 398 [2003]; Matter of Bates v Bates, 290 AD2d 732, 733 [2002]).Indeed, the testimony of eyewitnesses to the father's behavior and the unsettling testimony of thefather himself amply demonstrate the cause for the psychologist's concern (see Matter ofBates v Bates, 290 AD2d at 733-734). We note that the father also points out, correctly, thatthe mother's behavior was not above reproach and that some credibility issues existed withregard to her and other witnesses. Great deference is owed to Family Court's assessment ofcredibility, however, and we cannot say that its custody determination lacked a sound andsubstantial basis in the record (see Matter of Marchand v Nazzaro, 68 AD3d at 1217; Matter of Yost-Crawford v Sutton, 66AD3d 1168, 1171 [2009]).
Finally, the father claims that the Law Guardian's performance was deficient, but a LawGuardian is counsel for the child and is not required to meet "standards of performance laiddown for [him or] her by other counsel in the case, whose motives are dictated by the obligationto represent another party" and not the interests of the child (Matter of Stien v Stien, 130Misc 2d 609, 616 [1985]; see 22 NYCRR 7.2; Matter of VanDee v Bean, 66 AD3d 1253, 1255-1256 [2009]). Therelevant inquiry is whether the child received the effective assistance of counsel and, given thevigorous advocacy provided by the Law Guardian throughout these proceedings, there is noquestion that such occurred (see Matterof West v Turner, 38 AD3d 673, 674 [2007]; Matter of Chamberlain vChamberlain, 260 AD2d 671, 672 [1999], lv denied 93 NY2d 811 [1999]).
Lahtinen, Malone Jr., McCarthy and Garry, JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote *: Inasmuch as the father fails toraise any issue with regard to the order of protection, his appeal from it is deemed abandoned (see Matter of Schermerhorn v Breen, 8AD3d 709, 710 n [2004]; Matter of Maryann NN., 244 AD2d 785, 786 n [1997]).