| Matter of Johnpeer v Williams |
| 2010 NY Slip Op 05297 [74 AD3d 1584] |
| June 17, 2010 |
| Appellate Division, Third Department |
| In the Matter of Leslie G. Johnpeer, Appellant, v JodieWilliams, Respondent. (And Another Related Proceeding.) |
—[*1] Stafford, Piller, Murname, Plimpton, Kelleher & Trombley, Plattsburgh (Justin R. Meyer ofcounsel), for respondent. Abbie Goldbas, Utica, attorney for the children.
McCarthy, J. Appeal from an order of the Family Court of Clinton County (Lawliss, J.),entered January 21, 2009, which, among other things, granted respondent's application, in twoproceedings pursuant to Family Ct Act article 6, for custody of the parties' children.
When the parties ceased living together in 2001, they entered into an informal agreement toequally share time with their two children (born in 1999 and 2000), exchanging the children eachWednesday and either Saturday or Sunday. They followed this agreement until 2008, whenpetitioner (hereinafter the mother) commenced a proceeding for joint custody and primaryplacement of the children. Respondent (hereinafter the father) then commenced a proceedingseeking physical custody. Family Court granted joint custody with primary physical custody tothe father and visitation to the mother, including two of every three weekends, Monday eveningafter the week she did not have weekend visitation, and half of school breaks and summervacation. The mother appeals.
We affirm. A court making an initial determination of custody must make every effort [*2]to discern what arrangement will promote the children's bestinterests (see Matter of Bush vStout, 59 AD3d 871, 872 [2009]; Matter of Hissam v Mackin, 41 AD3d 955, 956 [2007], lvdenied 9 NY3d 809 [2007]; Matterof Anson v Anson, 20 AD3d 603, 603-604 [2005], lv denied 5 NY3d 711[2005]). Giving deference to Family Court's ability to observe the witnesses and assess theircredibility during the hearing, this Court will not disturb Family Court's determination if it issupported by a sound and substantial basis in the record (see Matter of Bush v Stout, 59AD3d at 873). Such a basis exists here.
Both parents have provided adequate homes and cared for the children for seven years undertheir informal agreement with only minor disagreements, making joint custody appropriate(see Matter of Haran-Buckner v Buckner, 188 AD2d 705, 707 [1992]). As for physicalplacement, Family Court found that the father provided a more stable environment. He ismarried and his wife is actively involved with the children, whereas the mother's boyfriendtestified that they have broken up three or four times over what he characterized as stupiddisagreements. The father and his wife have been more active recently in dealing with thechildren's medical and educational issues. The children were tardy for school 11 days when theywere with the mother, but none when with the father.
The children's pediatrician testified that the older child has been diagnosed with attentiondeficit hyperactivity disorder and is at risk for childhood obesity. After the mother missed givingthe child her medicine for several days, the school began administering it on the mother'scustodial days to ensure that the child could concentrate in class. While the father's wife mayhave overemphasized weight issues, she and the father were seriously attempting to address thechildren's health. On the other hand, the mother apparently contributed to the children's badeating habits. The pediatrician opined that structure and stability were essential for dealing withattention deficit hyperactivity disorder, and transitions during the week could be disruptive. Onechild's teacher testified that the child was more prepared, better rested and had always taken hermedicine when coming from the father's home as opposed to days when she came from themother's home. Considering the totality of the parties' circumstances, Family Court rationallydetermined that the children's best interests would be promoted by placing them with the fatherthroughout the school week, thereby avoiding midweek transitions (see Matter of Bush vStout, 59 AD3d at 872; Matter of Anson v Anson, 20 AD3d at 604). While thechildren now have somewhat less time with the mother, the visitation awarded to her wasfrequent and the parties are free to agree to additional visitation, as they live only a mile apart.
Peters, J.P., Rose, Stein and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.