| Matter of Tamara FF. v John FF. |
| 2010 NY Slip Op 05828 [75 AD3d 688] |
| July 1, 2010 |
| Appellate Division, Third Department |
| In the Matter of Tamara FF., Respondent, v John FF., Appellant.(And Another Related Proceeding.) |
—[*1] Christopher A. Pogson, Binghamton, for respondent. Lauren S. Cohen, Binghamton, attorney for the children.
Spain, J. Appeal from an order of the Family Court of Broome County (Pines, J.), enteredAugust 11, 2009, which, among other things, granted petitioner's application, in a proceedingpursuant to Family Ct Act article 6, for custody of the parties' children.
The parties are the parents of three children (born in 1995, 1996 and 1998) and, as of thecommencement of these proceedings, had been married for over 14 years. In November 2008,petitioner (hereinafter the mother) filed a family offense petition against respondent (hereinafterthe father) and commenced a proceeding seeking sole custody of the three children. Following ahearing, Family Court granted sole custody to the mother with one hour of supervised visitationeach week to the father, dismissed her family offense petition and issued an order of protectionagainst the father in favor of the mother and the children. The father now appeals, arguing thatjoint custody is appropriate and that the order of protection was unfounded.
Although "joint custody is an aspirational goal in every custody matter, such an award isinappropriate where the parties have demonstrated an inability to effectively communicate orcooperate to raise the children" (Matterof Clupper v Clupper, 56 AD3d 1064, 1065 [2008]). [*2]Here, after "[a]ccording the appropriate great deference to FamilyCourt's factual determinations and assessments of credibility, we agree that joint custody is notfeasible" (Matter of Melissa K. v BrianK., 72 AD3d 1129, 1131 [2010] [internal quotation marks and citations omitted]). Therecord supports Family Court's finding that the parties' ability to communicate and effectivelymake joint decisions had been seriously compromised by recent events. Specifically, in April2008, the father's pistol permit was suspended after he got into a road rage altercation withanother driver, an event that precipitated a series of problems culminating in these proceedings.The father was charged with criminal contempt in the second degree when he failed to turn overhis weapons as a result of the suspension of his permit. In a letter written in September 2008, thefather expressed outrage at the situation, claiming a violation of his constitutional rights andsuggesting a conspiracy against him by Broome County officials. In October 2008, the daybefore his hearing on the criminal contempt charge, the father was arrested when he allegedlydisplayed suspicious behavior outside the courthouse. After the arrest, the police found, uponreceiving permission from the mother to search their vehicle and home, a dagger in the vehicleand loaded, unlocked guns that the father had left in their home, as well as swords andnunchucks.
The mother's request for sole custody followed these events. She testified that she feared thefather, noting additional incidents where he had exhibited "road rage" and one incident where hehad kicked his son, leaving a mark. The mother also sought custody in response to the father'sstated intention of moving the family out of state away from her extended family because he isfrustrated with New York State's interference with his right to retain weapons. She explained thatthe father's lack of respect for legal authority frightened her in that she was afraid he would dosomething "stupid." In addition, the mother expressed her reluctance to standing up to the fatherbecause he "demeaned" her on a regular basis. In his testimony, the father admitted that hebelieved, as the male in the relationship, that when the parties disagreed he alone would makethe final decision. Given these restrictions on the parties' ability to effectively communicate andthe father's recent troubling behavior, we find that Family Court had a sound and substantialbasis for declining to grant joint custody (see Matter of Kowatch v Johnson, 68 AD3d 1493, 1494 [2009],lv denied 14 NY3d 704 [2010]; Matter of Cobane v Cobane, 57 AD3d 1320, 1322 [2008], lvdenied 12 NY3d 706 [2009]; Matter of Eck v Eck, 33 AD3d 1082, 1083-1084 [2006]).
Once it was determined that joint custody was not feasible, Family Court considered thechildren's best interests and awarded custody to the mother, who has a steady job, a place to liveand the support of her family. The father did not seek sole custody and, in any event, afterconsidering the need for maintaining stability in the children's lives and assessing the homeenvironments of both parents, we find that Family Court's determination is supported by therecord (see Matter of Holle v Holle,55 AD3d 991, 992 [2008]; Matter of Miller v Miller, 287 AD2d 814, 815 [2001],lv denied 97 NY2d 610 [2002]).
Turning to the issue of visitation, we agree with the father that the record does not supportthe severe restrictions placed on his ability to see his children. "Visitation by a noncustodialparent is presumed to be in the child[ren]'s best interest" (Matter of Frierson v Goldston, 9 AD3d 612, 614 [2004]). Here,both parties testified that the father had a good relationship with his children and, despite herprofessed fears, the mother admitted that the father is not frequently angry and that she had notnoticed any negative impact on the children stemming from the father's recent, erratic behavior.In the absence of a forensic evaluation or any insight into the children's views, we are unable todetermine whether such limitations on the [*3]father's access tohis children are warranted (see Matterof Rivera v Tomaino, 46 AD3d 1249, 1250 [2007]; Matter of Albanese v Albanese, 44 AD3d 1117, 1120 [2007]; see also Matter of Amato v Amato, 51AD3d 1123, 1124-1125 [2008]). Accordingly, the matter should be remitted to Family Courtto give the court the opportunity, at a minimum, to conduct a Lincoln hearing with thesechildren, who are certainly old enough to provide insight into their relationship with their father(see Matter of Flood v Flood, 63AD3d 1197, 1199 [2009]; cf. Matter of Mitchell v Mitchell, 209 AD2d 845, 847[1994]).
Finally, issues relating to the father's challenge to the order of protection are moot, inasmuchas the order of protection expired by its own terms in April 2010 (see Matter of Boua TT. v Quamy UU.,66 AD3d 1165, 1167 [2009], lv denied 14 NY3d 702 [2010]).
Mercure, J.P., Peters, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order ismodified, on the facts, without costs, by reversing so much thereof as established one hour ofweekly supervised visitation for respondent; matter remitted to the Family Court of BroomeCounty for further proceedings not inconsistent with this Court's decision, and, pending saidproceedings, the existing visitation order shall continue on a temporary basis; and, as somodified, affirmed.