| Matter of Ariane I. v David I. |
| 2011 NY Slip Op 02509 [82 AD3d 1547] |
| March 31, 2011 |
| Appellate Division, Third Department |
| In the Matter of Ariane I., Appellant, v David I., Respondent. (AndTwo Other Related Proceedings.) |
—[*1] Catherine E. Stuckart, Binghamton, for respondent. Mark Loughran, Binghamton, attorney for the children.
Rose, J. Appeal from an order of the Family Court of Broome County (Connerton, J.),entered May 24, 2010, which, in three proceedings pursuant to Family Ct Act article 6, amongother things, partially granted respondent's application for custody of the subject children.
Ariane I. (hereinafter the mother) and David I. (hereinafter the father) are the married parentsof two sons (born in 2005 and 2007). The mother left the marital residence in August 2009 withthe children and obtained a temporary order of protection against the father, which also providedfor the father's visitation with the children at least three times a week, to be arranged by themother and paternal grandmother (hereinafter the grandmother). The mother also filed familyoffense and custody petitions and then moved with the children to Texas without the father'sconsent. The father then filed a petition for custody and the grandmother filed a separate petitionthat ultimately sought visitation. Prior to the April 2010 hearing on these matters, all of themother's petitions were dismissed, except for one custody petition. When the mother failed toappear at the April hearing, her petition was dismissed without prejudice. The mother's counselwas present, however, and he participated in the hearings on the father's and grandmother'spetitions. Family Court ordered that the children be returned to Broome County, [*2]awarded joint custody with shared custodial periods and grantedvisitation to the grandmother. The mother appeals.
Initially, we note that the mother's appeal from the dismissal of her custody petition must bedismissed as no appeal lies from an order on default (see CPLR 5511; Matter of Anesi v Brennan, 75 AD3d791, 792-793 [2010]).[FN*]The mother's contention that she should not have been found in default and, instead, that sheshould have been granted an adjournment is without merit as no reasonable excuse was profferedfor her nonappearance (see Matter ofScott v Jenkins, 62 AD3d 1053, 1054 [2009], lv denied 13 NY3d 705 [2009]; Matter of Hill v Hillenbrand, 12 AD3d980, 981 [2004], lv denied 4 NY3d 705 [2005]). Family Court's determination thatthe mother's alleged financial inability to appear was caused by her voluntary removal of thechildren to a distant locale without first obtaining the permission of the court will not bedisturbed.
In making any custody determination, the primary concern is the best interests of the children(see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Matter of Melissa K. v Brian K., 72AD3d 1129, 1131 [2010]). Here, the record reveals that the mother was the primarycaregiver but that the father had a close bond with the children. The children also had almostdaily contact with the father's parents until the mother moved them to Texas to live with herparents, with whom the children had no prior relationship. Given the circumstances, FamilyCourt's determination that it was in the best interests of the children to award joint custody and todirect that the children reside in Broome County has a sound and substantial basis in the record(see Matter of Streid v Streid, 46AD3d 1155, 1157 [2007]; Matter of Meres v Botsch, 260 AD2d 757, 759 [1999]).
The mother does not contest the award of visitation to the grandmother. Instead, she contendsthat Family Court should have directed that the visitation time be taken from, and occur during,the father's custodial periods. Based on our review of the record and the mother's concession thatvisitation with the grandmother is in the children's best interests, we cannot agree that the courtabused its discretion in granting visitation as ordered (see Matter of Baker v Blanchard, 74 AD3d 1427, 1429 [2010];Matter of Kenyon v Kenyon, 251 AD2d 763, 764 [1998]).
We also reject the mother's claim of ineffective assistance of counsel. Counsel repeatedlyattempted to explain the mother's absences from court, made appropriate prehearing motions,sought adjournments on the mother's behalf and participated in the hearing by cross-examiningthe witnesses and making appropriate objections. Given the circumstances, the mother receivedmeaningful representation (see Matter ofLewis v Tomeo, 81 AD3d 1193, 1197 [2011]; Matter of Arieda v Arieda-Walek, 74 AD3d 1432, 1434 [2010]).We have considered [*3]the mother's remaining contentions andfind them to be without merit.
Mercure, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: The mother's claims regardingthe dismissal of her family offense petition and the custody petition she filed after the hearings inthese proceedings are not properly before us as she did not file a notice of appeal from eitherorder (see Family Court Act § 1115; Matter of Thomas v Osborne, 51 AD3d 1064, 1068 [2008];Matter of Houck v Garraway, 293 AD2d 782, 783 n 2 [2002]).