| Matter of Rundall v Rundall |
| 2011 NY Slip Op 05846 [86 AD3d 700] |
| July 7, 2011 |
| Appellate Division, Third Department |
| In the Matter of James W. Rundall, Appellant, v Amy E. Rundall,Respondent. (And Another Related Proceeding.) |
—[*1] O'Connell & Aronowitz, P.C., Plattsburgh (Donald W. Biggs of counsel), for respondent. Matthew E. Douthat, Plattsburgh, attorney for the child.
Rose, J. Appeal from an order of the Family Court of Clinton County (Lawliss, J.), enteredDecember 17, 2010, which, among other things, partially granted respondent's application, in twoproceedings pursuant to Family Ct Act article 6, for custody of the parties' child.
The parties are the married parents of a son, born in 2006. In September 2007, they movedinto the home of Amy Aubin while petitioner (hereinafter the father) worked in the Aubinresidence as Aubin's handyman and a dispatcher in her newspaper distribution business.Respondent (hereinafter the mother) had been unemployed since just before the child's birth, butfound full-time employment in late 2007. In February 2010, the father left the marital bedroom tobegin sleeping in the family room and thereafter began a relationship with Aubin which, as ofJune 2010, included sharing a bedroom with her while the mother remained in the residence.With the father's encouragement, the mother then carried on a brief affair with another male gueststaying at the residence. In August 2010, after a physical confrontation between the mother andthe father over the mother's plan to leave for a weekend visit with the child to the home of thefather's parents, Aubin had the father give the mother an eviction notice indicating that she was[*2]no longer welcome at the residence.
The father then commenced a proceeding seeking custody of the child, and the mothercross-petitioned for custody. After a hearing, Family Court concluded that both parents wereactively involved in the child's life and capable of caring for him, and the court granted joint legalcustody to the parties with the mother having primary physical placement. In light of the mother'sfull-time employment and the father's flexible work schedule, the court awarded the fatherall-day visitation from 8:00 a.m. until 5:30 p.m. every weekday that the mother works until thechild starts kindergarten in September 2011, at which time the father will have two consecutivethree-overnight weekends out of every three weekends and all day Monday following the thirdweekend. The father appeals, claiming that Family Court ignored his role as primary caretakerand arbitrarily determined that his living and employment situation is unstable based onspeculation about the future and disapproval of his relationship with Aubin. We are notpersuaded.
An initial custody determination is controlled by the best interests of the child, taking intoconsideration such factors as the parents' ability to provide a stable home environment for thechild, the child's wishes, the parents' past performance, relative fitness, ability to guide andprovide for the child's overall well-being, and the willingness of each parent to foster arelationship with the other parent (seeMatter of Lynch v Gillogly, 82 AD3d 1529, 1530 [2011]; Matter of Torkildsen v Torkildsen, 72AD3d 1405, 1406 [2010]). On review, we will accord deference to Family Court's ability toobserve the witnesses and assess their credibility, and will not disturb a determination so long asit is supported by a sound and substantial basis in the record (see Matter of Johnpeer v Williams, 74 AD3d 1584, 1585 [2010];Matter of Richardson v Alling, 69AD3d 1062, 1064 [2010]).
Family Court's conclusion that the father's employment and living arrangement were lessstable than the mother's reflects a reasonable assessment of the parties' current situations. Themother has been steadily employed in the same job for three years and lives alone in atwo-bedroom apartment in proximity to playgrounds and the child's school. The father, incontrast, continues to live with Aubin and her two teenage daughters. The father has noemployment contract or lease and his romantic relationship with Aubin is kept secret from thechild and Aubin's daughters. The father acknowledged that his employment and residence aredependent on Aubin and, in the event of a falling out, he would be without a job and a home. Thefather also acknowledged that the Aubin residence was often tense as a result of Aubin'sacrimonious divorce and the custody issues surrounding her own children. Notably, Aubin didnot testify in support of the father. Family Court noted the circumstances surrounding the father'srelationship with Aubin as an indication, along with the reported arguments between the fatherand Aubin, of the lack of stability in their relationship. Although not determinative, we also notethat Family Court's conclusion is in accord with the position advocated by the attorney for thechild (see Matter of Torkildsen v Torkildsen, 72 AD3d at 1407).
According due deference to Family Court's credibility determinations, its conclusion that thehome environment provided by the father is not as stable as the environment provided by themother is supported by a sound and substantial basis in the record (see Matter of Johnpeer vWilliams, 74 AD3d at 1585-1586; Matter of Richardson v Alling, 69 AD3d at 1064;Matter of Anson v Anson, 20 AD3d603, 604 [2005], lv denied 5 NY3d 711 [2005]). Finally, we find no basis for thefather's claim that the requirement that he be available to personally supervise the child duringhis visitation periods demonstrates the arbitrary nature of the award.[*3]
Mercure, J.P., Lahtinen, Kavanagh and Garry, JJ., concur.Ordered that the order is affirmed, without costs.