| Matter of Sullivan v Sullivan |
| 2011 NY Slip Op 08856 [90 AD3d 1172] |
| December 8, 2011 |
| Appellate Division, Third Department |
| In the Matter of Rebecca Sullivan, Respondent, v DanielSullivan, Appellant. (And Another Related Proceeding.) |
—[*1] The DeLorenzo Law Firm, L.L.P., Schenectady (Cory Ross Dalmata of counsel), forrespondent. Diane Herrmann, Schenectady, attorney for the child.
Spain, J.P. Appeal from an order of the Family Court of Schenectady County (Powers, J.),entered September 2, 2010, which, among other things, granted petitioner's application, in aproceeding pursuant to Family Ct Act article 6, for custody of the parties' child.
The parties met in August 2008, married in October 2008 and resided together until March2009, when respondent (hereinafter the father) was incarcerated in state prison upon his guiltyplea to assault in the second degree. Petitioner (hereinafter the mother) thereafter gave birth totheir child in August 2009 and on approximately 10 occasions—until June2010—transported him to visits with the father in prison, a three to four-hour one-waydrive. During this time, the mother asked for a divorce and began dating—and becamepregnant with a second child with—her current boyfriend, who is a Marine on active dutystationed, as relevant here, in Quantico, Virginia.
In April 2010, the mother commenced a proceeding seeking sole custody of the child, andFamily Court issued such a temporary award to the mother. The mother and child relocated inJuly 2010 to Virginia—without the father's consent—to live with the new boyfriend.The [*2]father, still incarcerated, then filed a cross petition for"shared custody upon [his] release" and visitation, to allow him to parent and bond with the childwhen he is released from prison. Family Court held a fact-finding hearing in July 2010 at whichonly the parties testified. In a well-reasoned decision, the court awarded the mother sole custodyand directed her to provide the father with monthly pictures and updates and biweekly telephonecalls to the prison. The court declined to order the mother to return to the Capital District. Thefather, who has since been released from prison to parole, now appeals.
Given that Family Court was making an initial custody determination, "the overridingpriority is the best interests of the child" (Matter of Lynch v Gillogly, 82 AD3d 1529, 1530 [2011]; see Matter of Torkildsen v Torkildsen,72 AD3d 1405, 1406 [2010]). As the parties and court recognized, the court was notrequired to strictly apply the relocation factors set forth in Matter of Tropea v Tropea (87NY2d 727, 739-741 [1996]), although the mother's relocation was "a very important factor"among all factors to be considered in making a best interests determination, as was the effect ofthe move on the child's relationship with the father if the mother were awarded custody (see Matter of Baker v Spurgeon, 85AD3d 1494, 1496 [2011], lv dismissed 17 NY3d 897 [2011]; Matter of Lynch vGillogly, 82 AD3d at 1530; Matterof Schneider v Lascher, 72 AD3d 1417, 1417-1418 [2010], lv denied 15 NY3d708 [2010]). "Recognizing the advantageous position of Family Court to evaluate the testimonyand assess the credibility of witnesses, we accord great deference to that court's custodialdetermination provided that it is supported by a sound and substantial basis in the record"(Matter of Torkildsen v Torkildsen, 72 AD3d at 1406 [citations omitted]).
The evidence at the hearing established that the mother had been steadily employed full timein the nursing field and was at all times the child's primary caretaker; while at work, she receivedcaretaking help from her brother and mother, with whom she resided in Schenectady County.Prior to her move, she demonstrated a willingness to foster the child's relationship with the fatherby driving him to see the father in prison a great distance many times (see id. at 1407).The court found her to be mature and was troubled by her testimony, which the court credited,that the father shook the one-month old child during two prison visits and, on other occasions,failed to console or comfort the crying infant.
Of course, we share Family Court's condemnation of the mother's decision to take the childto Virginia against the father's known opposition and while her petition was pending, given theabsence of an urgent need to move at that time, leaving behind a stable home and employment.The court also properly took into consideration, however, that the mother promptly securedstable employment and child care in Virginia that allowed her to work part time while residingwith her boyfriend, who she plans to marry after obtaining a divorce, enabling her to care for thechild and his soon to be born sibling.
With regard to the father, he has never provided financially for the child and was in prisonwhen the child was born. He took no steps to prepare for the child's arrival, remaining voluntarilyunemployed from the time he met the mother until he was incarcerated (August 2009 to March2010) so that he could focus solely on his pending criminal charges. He has a history ofmethadone addiction and, while he had completed beneficial courses for substance abuse,aggression therapy and vocational training in prison, he remained incarcerated at the time of thehearing and lacked the ability to provide or care for the child. Family Court rightfully refused to[*3]make a shared custody order to take effect at the time of hisrelease,[FN*]and, as such, an order would have been premature and, thus, inappropriate.
Based upon the foregoing, Family Court concluded that the mother is the parent morecapable of maintaining steady employment in order to provide for the child and that she is livingin a safe and stable environment. The court's determination that the child's best interests will befurthered by an award of sole custody to the mother is fully supported by a sound and substantialbasis in the record and will not be disturbed (see id. at 1406). As the father has since beenreleased from prison, his appeal from the denial of that part of his petition requesting in-personvisitation while incarcerated is moot. He remains entitled to apply for visitation under his presentcircumstances.
The father's further claims that he was denied meaningful representation during the custodyproceedings are belied by the record (see Family Ct Act § 262; Matter of Jolynn W. v Vincent X., 85AD3d 1217, 1218-1219 [2011], lv denied 17 NY3d 713 [2011]; Matter of Elizabeth HH. v Richard II.,75 AD3d 670, 670 [2010]). From the outset, counsel endeavored to protect the father'srights, requesting an adjournment to speak with him via telephone in prison before advocatingthe father's position; counsel strenuously objected when the mother moved while the proceedingswere pending, seeking a directive, albeit unsuccessfully, that she move back and providetransportation for prison visitation. At the hearing, counsel vigorously cross-examined themother, aiming to undermine her credibility. Counsel was both competent and zealous (see Matter of Rosi v Moon, 84 AD3d1445, 1447 [2011]). The shortcomings in the father's proof cited by the court stemmed fromthe father's own failure when testifying to establish his ability to support and provide for the childwhile incarcerated or upon his release.
Rose, Malone Jr., Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: The father's tentative plans uponhis release to parole were to reside with his father in Pittsfield, Massachusetts and resume hiswork for his father's construction business, if allowed by parole restrictions, or to move severalhours north to reside with his mother. While he testified that he would stay in the Capital Districtif necessary to visit with the child, he had no viable plan for doing so.