| Williams v Williams |
| 2010 NY Slip Op 07840 [78 AD3d 1256] |
| November 4, 2010 |
| Appellate Division, Third Department |
| Anthony M. Williams, Respondent, v Natasha R. Williams,Appellant. |
—[*1] James G. Cushman, Norwich, for respondent. Carman M. Garufi, Binghamton, Attorney for the Children.
Stein, J. Appeal from an order of the Supreme Court (Tait, J.), entered February 20, 2009 inBroome County, which awarded custody of the parties' children to plaintiff.
Plaintiff (hereinafter the father) and defendant (hereinafter the mother) were married in 2000 andare the parents of a daughter (born in 1999) and a son (born in 2002). In July 2004, the mother tookthe children from the marital residence in Chenango County and relocated to the New York City areawithout informing the father as to their exact whereabouts. Proceedings ensued which resulted in,among other things, the father being awarded temporary custody by Family Court (Burns, J.). AlthoughFamily Court's order was subsequently reversed by this Court and remitted for a new hearing (Matter of Williams v Williams, 35 AD3d1098 [2006]), the father was again awarded temporary custody by Supreme Court (Tait, J.) afterthe father commenced this action for divorce, and the remitted Family Court proceedings weretransferred to Supreme Court. In June 2008, after conducting a fact-finding hearing and aLincoln hearing, Supreme Court awarded the father sole custody. The mother now appeals andwe affirm.
The mother argues that Supreme Court failed to ascribe proper weight to her allegations ofdomestic violence and that the award of custody did not have a sound and substantial basis in therecord. We disagree. "In determining the best interests of the child[ren], [the court] was required toconsider various factors, including how the decision would impact on the child[ren]'s [*2]stability, the home environment of both parents, 'each parent's willingnessto foster a relationship with the other parent, and their past performance and ability to provide for the[children's] overall well-being' " (Matter ofWentland v Rousseau, 59 AD3d 821, 822 [2009], quoting Matter of Clupper v Clupper, 56 AD3d1064, 1065-1066 [2008]; see Matter ofSmith v Miller, 4 AD3d 697, 698 [2004]). The court must also consider the effect ofdomestic violence in determining the best interests of the children, but only when the allegations ofdomestic violence are proven by a preponderance of the evidence (see Domestic RelationsLaw § 240 [1] [a]; Matter of MelissaK. v Brian K., 72 AD3d 1129, 1131 [2010]). We accord great deference to the trial court'scustody determination, "[r]ecognizing the advantageous position of [Supreme] Court to evaluate thetestimony and assess the credibility of witnesses, . . . provided that it is supported by asound and substantial basis in the record" (Matter of 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, the mother testified that the father mentally abused her and that he had shaken their daughteron one occasion. However, the mother never filed a police report or commenced a proceeding inFamily Court against the father. The mother also testified that, at the father's insistence, they both usedcorporal punishment to discipline the children. The father admitted to having used corporal punishmentin the past but testified that, as the children grew older, he used it less and less as they respondedeffectively to communications regarding expectations and consequences. The mother's allegations thatthe father was sexually abusing the daughter were determined to be unfounded after examinations ofboth children. Supreme Court expressly gave no credit to these allegations and noted that thedaughter's school principal testified that the daughter recanted any allegations of physical abuse that shehad made. In addition, the principal testified that he had no concerns that the children were beingabused or mistreated. Upon our review of the record, and according deference to Supreme Court'sfactual and credibility determinations, we find that the mother's claims of domestic violence were notestablished by a preponderance of the evidence and, therefore, that Supreme Court properly declinedto consider them in making its custody determination.
We also find that there is a sound and substantial basis in the record for Supreme Court's custodyaward. Given the animosity between the parties, which prevented them from effectively communicating,Supreme Court properly determined that joint custody was not appropriate (see Matter of Tamara FF. v John FF., 75AD3d 688, 689 [2010]) and proceeded to assess the best interests of the children in order tomake an award of sole custody (see Matterof Hildenbrand v Hildenbrand, 37 AD3d 981, 981 [2007]).
Here, the children have resided with the father since early 2006. The record indicates that thefather is very involved in the children's school, recreational, sporting and church activities and takes careof their daily needs. The father has completed parenting courses, provided counseling for the childrenand has addressed their medical and academic needs as necessary. On appeal, the mother concedesthat the father has provided adequate care for the children for four years. The record also supportsSupreme Court's finding that the father is willing to foster the children's relationship with their mother.For example, despite past difficulties in having the children returned to him after visits with the mother,he is willing to facilitate visitation—including agreeing to provide transportation oneway—and to otherwise permit regular contact between the children and the mother. Althoughneither parent has steady employment, the father owns a home that he purchased with inheritancemoney that has the [*3]potential to be an income property. Overall, therecord reveals that the children have attained a stable life and appear to be thriving in the father's care.
In contrast, the mother lives with her ailing grandmother and the mother's young son from anotherrelationship in a neighborhood of questionable safety and depends on relatives for support. The motherhas visited the children infrequently, allegedly due to the geographic distance between the parties andfinancial constraints, but has traveled by plane to Atlanta, Georgia to visit with the father of her youngestson. While the mother also alleged that she is afraid to come to the Broome County area because of herfear of the father, she testified that the parties have always met at a public place and did not feel itnecessary to meet at a police station. Furthermore, as previously indicated, the mother's allegations ofdomestic violence and other abuse were discredited.
Upon our review of the record as a whole, we conclude that, while neither parent is without his andher respective strengths and weaknesses, Supreme Court properly weighed the factors relevant todetermining which custodial arrangement was in the best interests of the children and we discern noreason to disturb its decision and order.
Cardona, P.J., Peters, Rose and Malone Jr., JJ., concur. Ordered that the order is affirmed,without costs.