| Matter of White v White |
| 2010 NY Slip Op 07428 [77 AD3d 1073] |
| October 21, 2010 |
| Appellate Division, Third Department |
| In the Matter of Christopher M. White, Respondent, v Gina White,Appellant. (And Another Related Proceeding.) |
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Stein, J. Appeal from an order of the Family Court of Rensselaer County (James, J.H.O.),entered June 18, 2009, which granted petitioner's application, in two proceedings pursuant toFamily Court Act article 6, for custody of the parties' children.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the marriedparents of a daughter (born in 1999) and a son (born in 2002). Both children were born in theCity of Binghamton, Broome County and resided with the parties in different areas of the statebefore temporarily moving to South Carolina in 2006. While in South Carolina, the mother andthe father mutually agreed that the mother should enter a residential dual diagnosis treatmentfacility in Tennessee to address her alcohol and prescription drug abuse. While undergoing suchtreatment, the mother received a telephone call from the father, who explained that he had anemployment opportunity in the Albany, New York area. The mother did not object and the fatheraccepted the position, moving with both children to New York in October 2008 while the motherremained in treatment in Tennessee.
After the mother left inpatient treatment in late October 2008, she moved to [*2]Binghamton—where she resided with her mother—tocomplete an outpatient program. While she was undergoing her outpatient treatment, the partieswere unable to agree on where they would reside as a family, the mother wishing to reside in theBinghamton area near her family and the father preferring to remain in the Albany area near hisfamily. The father commenced the first of these proceedings seeking physical custody of bothchildren and was granted a temporary order of custody. The mother then cross-petitioned forphysical custody. For a short time thereafter, the parties attempted to reconcile and the mothermoved into a residence owned by the father's mother and stepfather in the Town of Wyantskill,Rensselaer County. When the parties' reconciliation failed, the mother returned to Binghamtonand the parties followed an informal shared custody arrangement, with the mother havingparenting time every weekend. Following a fact-finding hearing and a Lincoln hearing,Family Court awarded the parties joint legal custody, granted the father primary physical custodyand established a parenting schedule for the mother. The mother now appeals[FN*]and we affirm.
"In determining the best interests of the child[ren], Family Court was required to considervarious factors, including how the decision would impact on the child[ren]'s stability, the homeenvironment of both parents, 'each parent's willingness to foster a relationship with the otherparent, and their past performance and ability to provide for the child[ren]'s overall well-being' "(Matter of Wentland v Rousseau, 59AD3d 821, 822 [2009], quoting Matter of Clupper v Clupper, 56 AD3d 1064, 1065-1066 [2008];see Matter of Smith v Miller, 4AD3d 697, 698 [2004]). We accord great deference to Family Court's custody determination,"[r]ecognizing the advantageous position of Family Court to evaluate the testimony and assessthe credibility of witnesses . . . provided that it is supported by a sound andsubstantial basis in the record" (Matterof Torkildsen v Torkildsen, 72 AD3d 1405, 1406 [2010]; see Matter of Marchand v Nazzaro, 68AD3d 1216, 1217 [2009]; Matter of Wentland v Rousseau, 59 AD3d at 823; Matter of Diffin v Towne, 47 AD3d988, 990 [2008], lv denied 10 NY3d 710 [2008]).
Here, at the time of trial, both parties resided in the homes of their respective parents andthere is nothing in the record that would lead to the conclusion that either home is unsuitable.Both parties have demonstrated a willingness to foster the children's relationship with the other.Notably, the mother conceded that the father is a wonderful parent. Although not determinative,the attorney for the children supports Family Court's decision placing primary custody with thefather. The hearing testimony further evidences that the father has maintained the role of thechildren's primary caretaker since June 2008. In furtherance of that role, he has been activelyinvolved with the children's academic progress, has driven them to school every day, arranged forhis mother to pick up the children from school every afternoon and provide daycare for themuntil he returns home from work in the evening, established and maintained contact with each ofthe children's respective teachers, and arranged for dental and medical care for the children,including neurological care for the parties' son. The daughter's school social worker testified thatshe was thriving and happy in the Averill Park school system.
While the record reveals that the father was not without flaws and, although Family Courtalso found the mother to be a fit parent and her efforts at rehabilitation to be admirable, the courtdetermined that the mother had not provided, nor appeared currently able to provide, [*3]sufficient stability for the children. In this regard, the testimony ofthe mother and the maternal grandmother reflected the mother's continued need for substantialsupport in her rehabilitation. Family Court expressed its concern that the stability presentlyenjoyed by the children would be undermined by moving them from their current environment.The mother's contention that Family Court failed to accord proper weight to the testimony ofAaron Hoorwitz, a psychologist for the Rensselaer County Department of Mental Health, whoconducted a custody evaluation, is unpersuasive, as his testimony was inconsistent on significantissues, was contradictory to some testimony at the hearing (see Matter of Gast v Gast, 50 AD3d 1189, 1190 [2008]) and, insome respects, was unsubstantiated.
Upon our review of the record as a whole, we conclude that Family Court properly weighedthe factors relevant to determining which custodial arrangement was in the best interests of thechildren, and we find a sound and substantial basis in the record to support Family Court'sdetermination that the children have attained a stable life and appear to be thriving anddeveloping in the father's care. As such, we discern no reason to disturb Family Court's order(see Eschbach v Eschbach, 56 NY2d 167, 173-174 [1982]; Matter of Richardson v Alling, 69AD3d 1062, 1064 [2010]; Matter ofSmith v Smith, 61 AD3d 1275, 1277-1278 [2009]; Matter of Wentland vRousseau, 59 AD3d at 823).
Peters, J.P., Spain, Malone Jr. and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: The mother's appeal is limitedby her brief to so much of Family Court's order as awarded the father primary physical custody ofthe children.