| Matter of Danielle TT. v Michael UU. |
| 2011 NY Slip Op 08697 [90 AD3d 1103] |
| December 1, 2011 |
| Appellate Division, Third Department |
| In the Matter of Danielle TT., Respondent, v Michael UU.,Appellant. (And Two Other Related Proceedings.) |
—[*1] Gail B. Rubenfeld, Monticello, attorney for the children.
Malone Jr., J. Appeal from an order of the Family Court of Sullivan County (Ledina, J.),entered September 8, 2010, which, among other things, granted petitioner's application, in threeproceedings pursuant to Family Ct Act article 6 and 8, for custody of the parties' children.
The parties are the separated, but still married, parents of two children (born in 2005 and2007). In October 2008, petitioner (hereinafter the mother) commenced a custody proceedingseeking sole custody of the children, and a family offense proceeding alleging that respondent(hereinafter the father) had committed acts constituting harassment and disorderly conduct. Thefather thereafter cross-petitioned for custody of the children. After extensive hearings, FamilyCourt dismissed the family offense petition and awarded the mother sole custody of the children.The father appeals.
An initial custody determination is guided by the best interests of the children as determinedby consideration of, among other things, each parent's ability to provide a stable homeenvironment, their ability to provide for the children's overall well-being and their willingness tofoster a relationship between the children and the noncustodial parent (see Matter of Rundall v Rundall, 86AD3d 700, 701 [2011]; Matter ofSmith v Smith, 61 AD3d 1275, 1276 [2009]). This Court "accord[s] deference to FamilyCourt's ability to observe the witnesses and [*2]assess theircredibility, and will not disturb a determination so long as it is supported by a sound andsubstantial basis in the record" (Matter of Rundall v Rundall, 86 AD3d at 701-702; see Matter of Siler v Wright, 64 AD3d926, 928 [2009]).
The evidence here establishes that both the mother and the father are fit and loving parents tothe children and that each parent demonstrates strengths and weaknesses. Nevertheless, therecord supports Family Court's determination to award sole custody to the mother, who has beenthe children's primary caregiver, because she is better able to provide proper guidance to thechildren and she is more likely to foster a relationship between the children and the noncustodialparent. This determination was based on, among other things, evidence that the father was strictand controlling, while the mother demonstrated less anger, more flexibility and moreunderstanding when dealing with the children. Testimony at the hearing also established that thefather was less likely than the mother to follow through on disciplining the children, whichsuggested that he was more concerned about persuading the children to like him than withcreating and enforcing structure for them. Witnesses at the hearing described the father asdomineering, self-centered and distant in his interactions with the children, whereas the motherwas described as enjoying a close and nurturing relationship with them. Although the fatherraises contentions regarding the mother's history of marihuana use and other health issues, therecord reflects, as Family Court found, that those issues have been adequately addressed by themother and do not interfere with her current ability to care for the children. Overall, the recordsupports Family Court's finding that, "[i]f awarded custody[,] it is very likely that [the father] willact to alienate the children from their mother, denigrate her to them, and attempt to cut her andher family off from them, as he has done in the past." Although the mother has had someweaknesses in the past, the record reflects that the mother recognizes those weaknesses and hastaken action to improve them, whereas the father fails to acknowledge his own shortcomings and,instead, concentrates on the mother's (see Matter of Melissa K. v Brian K., 72 AD3d 1129, 1131-1132[2010]). Considering all of the relevant facts, and according great deference to Family Court'sassessment of the witnesses' credibility, a sound basis exists in the record to support the award ofsole custody of the children to the mother (see Matter of Baker v Baker, 82 AD3d 1462 [2011]).[FN*]
The father's remaining contentions, including his claim that the attorney for the children wasbiased against him, have been reviewed and we find them to be unpersuasive.
Mercure, J.P., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: *To the extent that the fatherchallenges Family Court's award of sole legal custody to the mother, we reach the sameconclusion based upon credible evidence of, among other things, the parties' contentiousrelationship, as well as the father's controlling and overbearing nature and his tendency to attemptto undermine the mother's parenting (seeMatter of Spiewak v Ackerman, 88 AD3d 1191, 1192 [2011]).