| Matter of Raynore v Raynore |
| 2012 NY Slip Op 01396 [92 AD3d 1167] |
| February 23, 2012 |
| Appellate Division, Third Department |
| In the Matter of Robert Raynore, Appellant, v KaetlinRaynore, Respondent. (And Another Related Proceeding.) |
—[*1] Mark A. Schaeber, Liverpool, attorney for the child.
Kavanagh, J. Appeal from an order of the Family Court of Madison County (McDermott, J.),entered April 6, 2011, which, among other things, granted respondent's cross application, in twoproceedings pursuant to Family Ct Act article 6, for custody of the parties' child.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of achild (born in 2007). After the parties had separated on numerous occasions, both filed petitionsfor custody of the child and, while these proceedings were pending, the father was grantedtemporary physical custody. Family Court, after a hearing, directed that the parties have jointlegal custody of the child, with the mother having primary physical custody and the father havingaccess to the child pursuant to an established visitation schedule. The father now appeals.
In making an initial determination of custody, Family Court's focus is on the child's bestinterests (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Matter of Shearer v Spisak, 90 AD3d1346, 1347 [2011]), and the court must take into consideration "the parents' ability toprovide a stable home environment for the child, the child's wishes, the parents' pastperformance, relative fitness, ability to guide and provide for the child's overall well-being, andthe willingness of each parent to foster a relationship with the other parent" (Matter of Rundall v Rundall, 86 AD3d700, 701 [2011]; see Hughes vGallup-Hughes, 90 AD3d 1087, 1089 [2011]). [*2]Thecourt's determination will not be disturbed, given its opportunity "to observe the witnesses andassess their credibility, . . . so long as it is supported by a sound and substantialbasis in the record" (Matter of Rundall v Rundall, 86 AD3d at 701-702). Here, FamilyCourt concluded that it was in the child's best interests to live with the mother, even though thefather had been the child's primary caretaker in the months leading up to the hearing and a closerelationship obviously existed between them. The court's conclusion was based primarily on thefather's history of drug abuse and the fact that, as recently as 2010, witnesses observed him usingcrack cocaine and he had tested positive for opiates. The court also noted that the father hadfailed to complete any counseling or treatment designed to address his use of illegal drugs, andhe had a record of intermittent employment. Also, the father has a criminal history, whichincludes a charge that he stole a credit card from a prior employer, and he admitted to operating amotor vehicle with a suspended license. In contrast, the mother is gainfully employed andreceives benefits, including health insurance for both her and the child. She resides with herfather and, as Family Court found, has been able to provide a suitable home environment for thechild.
We also note that the relationship between the parties has been plagued by numerousinstances of domestic violence, some of which occurred in the child's presence and, on oneoccasion, escalated to the point that the police were called and the father was placed under arrest.However, despite these difficulties, the mother appears to recognize the need for the child to havea relationship with his father and the father's family. The father, on the other hand, has not beenas cooperative and, while he had temporary custody of the child, he persistently interfered withthe mother's attempts to visit with the child and refused to allow her father to pick the child upfor these visits. Given these facts, we conclude that Family Court's decision to award primaryphysical custody to the mother has a sound and substantial basis in the record (see Matter of Gunthorpe v Cathey, 52AD3d 907, 909 [2008]).
Finally, we reject the father's conclusion that Family Court's visitation order was unfair andtoo restrictive. The schedule as established is clearly "guided by the best interests of the child"and, given the evidence that exists in the record, we see no reason to modify it (Matter of Moore v Schill, 44 AD3d1123, 1123 [2007]).
Peters, J.P., Lahtinen, Stein and Garry, JJ., concur. Ordered that the order is affirmed,without costs.