| Matter of Chilbert v Soler |
| 2010 NY Slip Op 06958 [77 AD3d 1405] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of Michele S. Chilbert, Respondent, v Arcangel L. Soler,Appellant. (Appeal No. 1.) |
—[*1] Alexandra Burkett, Canandaigua, for petitioner-respondent. Victoria L. King, Attorney for the Child, Canandaigua, for Abigail S.
Appeal from an order of the Family Court, Ontario County (Maurice E. Strobridge, J.H.O.),entered August 12, 2009 in a proceeding pursuant to Family Court Act article 6. The order awardedpetitioner sole custody of the parties' child, with supervised visitation with respondent.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: In appeal No. 1, respondent father appeals from an order awarding petitionermother sole custody of the parties' child, with supervised visitation with the father. In making an initialcustody determination, "Family Court was required to consider the best interests of the child byreviewing such factors as 'maintaining stability for the child, . . . the home environmentwith each parent, each parent's past performance, relative fitness, ability to guide and provide for thechild's overall well-being, and the willingness of each parent to foster a relationship with the otherparent' " (Kaczor v Kaczor, 12 AD3d956, 958 [2004]). Contrary to the contention of the father, those factors weigh heavily in themother's favor, and the court's determination that the child's best interests will be served by an award ofsole custody to the mother has a sound and substantial basis in the record (see Matter of Shaw vAntes, 274 AD2d 679, 680-681 [2000]; see also Matter of Tompkins v Holmes, 27 AD3d 846, 847 [2006]).The further determination "whether visitation should be supervised is a matter 'left to Family Court'ssound discretion and it will not be disturbed as long as there is a sound and substantial basis in therecord to support it' " (Matter of Taylor vFry, 47 AD3d 1130, 1131 [2008]). Here, the record establishes that the father committedacts of domestic violence against the mother, often in the child's presence, and that he threatened to killthe mother and leave with the child. In addition, the conduct of the father during the hearingdemonstrated his inability to control his behavior (see Matter of Simpson v Simrell, 296 AD2d621 [2002]). Thus, "[a]lthough there is no direct evidence that [the father] had ever directed his angerat his daughter or had harmed her in any way . . . , his inability to control his anger in thepresence of his daughter is detrimental to the child's best interest[s] . . . [, and] the recordprovides [*2]no basis to disturb Family Court's conclusion that limiting[the father] to supervised visitation was in the child's best interest[s]" (id. at 621-622).
In appeal No. 2, the father appeals from an amended order of protection pursuant to Family CourtAct article 8, entered upon the court's determination following a fact-finding hearing that he committedthe family offense of harassment in the second degree (see Family Ct Act § 832; PenalLaw § 240.26 [1], [3]). The record does not support the father's contention that the court basedits determination on facts not alleged in the family offense petition (cf. Matter of Felicia W. v Chandler C., 9 AD3d 830 [2004]). Rather, afair preponderance of the credible evidence supports the court's determination sustaining the allegationsof the petition that the father committed acts constituting the family offense of harassment in the seconddegree and warranting the issuance of an order of protection (see Matter of Kaur v Singh, 73 AD3d 1178 [2010]).
We reject the further contention of the father in appeal No. 2 that he received ineffective assistanceof counsel at the fact-finding hearing on the family offense petition. " 'It is not the role of this Court tosecond-guess the attorney's tactics or trial strategy' . . . and, based on our review of therecord, we conclude that the [father] received meaningful representation" (Matter of Derrick C., 52 AD3d 1325,1326 [2008], lv denied 11 NY3d 705 [2008]; see Matter of Nagi T. v Magdia T., 48 AD3d 1061 [2008]).Present—Fahey, J.P., Carni, Lindley, Green and Gorski, JJ.