| Matter of Melissa WW. v Conley XX. |
| 2011 NY Slip Op 07546 [88 AD3d 1199] |
| October 27, 2011 |
| Appellate Division, Third Department |
| In the Matter of Melissa WW., Appellant, v Conley XX.,Respondent. (And Three Other Related Proceedings.) |
—[*1] Tina J. Soloski, Plattsburgh, for respondent. Omshanti Parnes, Plattsburgh, attorney for the child.
Egan Jr., J. Appeal from an order of the Supreme Court (Lawliss, J.), entered September 27,2010 in Clinton County, which, among other things, granted respondent's cross application, infour proceedings pursuant to Family Ct Act article 6, for custody of the parties' child.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the unmarriedparents of a daughter (born in 2010). Prior to going their separate ways in March 2010, theparties resided together with the mother's daughter from a prior relationship. Shortly after thesubject child's birth, the mother commenced a proceeding seeking sole custody and, within amatter of days, the father cross-petitioned seeking joint legal and physical custody of the child.The mother was awarded sole custody on a temporary basis, and the father was granted visitation.
The mother thereafter commenced two modification proceedings alleging, among otherthings, that the father returned the child from visitations wet and dirty and inappropriatelytouched the mother's other child. At some point, these proceedings were transferred to theIntegrated Domestic Violence part of Supreme Court, which suspended the father's visitationpending a custody hearing. At the conclusion thereof, Supreme Court, among other things,awarded the father sole legal and physical custody of the parties' child and established a visitation[*2]schedule for the mother. This appeal ensued.
We affirm. In rendering an initial custody determination, Supreme Court was required to takeinto consideration a number of factors, including each parent's ability to furnish and maintain asuitable and stable home environment for the child, past performance, relative fitness, ability toguide and provide for the child's overall well-being and willingness to foster a positiverelationship between the child and the other parent (see Matter of Rundall v Rundall, 86 AD3d 700, 701 [2011]; Matter of Baker v Baker, 82 AD3d1462, 1462 [2011]; Williams vWilliams, 78 AD3d 1256, 1257 [2010]). The court's factual findings and credibilitydeterminations, if supported by sound and substantial evidence, are entitled to great deference(see Matter of Seacord v Seacord,81 AD3d 1101, 1104 [2011]; Williams v Williams, 78 AD3d at 1257).
Initially, we have no quarrel with Supreme Court's determination that an award of jointcustody was not feasible. "While joint custody is an aspirational goal in every custody matter,such an award is inappropriate where[, as here,] the parties have demonstrated an inability toeffectively communicate or cooperate to raise the child[ ]" (Matter of Clupper v Clupper, 56 AD3d 1064, 1065 [2008][citations omitted]; see Farina vFarina, 82 AD3d 1517, 1518 [2011]).
As for Supreme Court's decision to award sole legal and physical custody to the father, therecord reflects that both parents are employed, have appropriate and suitable home environmentsand possess the basic skills required to effectively provide for the child's well-being. Althoughthe mother was the child's primary caregiver during the relatively brief period of time thatelapsed between the child's birth and the underlying custody hearing, the record as a wholesupports Supreme Court's finding that the mother actively and persistently interfered with thefather's visitation rights by, among other things, unreasonably refusing to relinquish the child ifthe father was even five minutes late (or early) for his scheduled visitation (cf. Matter of Keefe v Adam, 85 AD3d1225, 1226 [2011]) and repeatedly threatening to utilize child protective services to curtailor eliminate his visitation altogether. Additionally, the record reflects that the mother denied thefather, who was providing medical insurance for the child, access to the child's healthinformation by threatening to contact law enforcement if he attended the child's well-baby visitsand setting up a password system with the child's pediatrician, thereby ensuring that the child'smedical records would not be shared with him (see Matter of Dickerson v Robenstein, 68 AD3d 1179, 1180[2009]).
Most disturbing, however, is what Supreme Court characterized as the mother's manipulationof her oldest child regarding the allegations of inappropriate touching—allegations thatSupreme Court found the mother to have manufactured (see Matter of Taber v Taylor,238 AD2d 696, 697 [1997]; Matter of Karen PP. v Clyde QQ., 197 AD2d 753, 754[1993]). Contrary to the mother's assertion, her demonstrated hostility toward the father, as wellas her apparent inability or, more to the point, unwillingness to foster a meaningful relationshipbetween the father and the child, directly implicate her parenting skills and call into question herparental fitness. Under these circumstances, we cannot say that Supreme Court's decision toaward the father sole custody lacks a sound and substantial basis in the record.
Finally, to the extent that the attorney for the child takes issue with the amount of visitationawarded to the mother, we note that the attorney for the child did not file a notice of appeal andthe mother raises no issue in this regard in her brief.
Mercure, J.P., Peters, Stein and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.