| Jeannemarie O. v Richard P. |
| 2012 NY Slip Op 03240 [94 AD3d 1346] |
| April 26, 2012 |
| Appellate Division, Third Department |
| Jeannemarie O., Appellant, v Richard P.,Respondent. |
—[*1] Van DeWater & Van DeWater, Poughkeepsie (Kyle W. Barnett of counsel), for respondent. Reka Nori, Kingston, attorney for the children.
Garry, J. Appeal from an order of the Supreme Court (Zwack, J.), entered March 11, 2011 inUlster County, which, among other things, granted defendant's motion for an award of custody of the parties' children.
Plaintiff (hereinafter the mother) and defendant (hereinafter the father) were married in 2005and are the parents of two children (born in 2006 and 2008). The parties resided in Ulster Countyduring their marriage. In January 2009, the mother relocated with the children to Suffolk County,where she commenced family offense proceedings—ultimately dismissed—and adivorce action. The father's custody petition in Ulster County was dismissed due to the pendingSuffolk County divorce action; thereafter, he commenced a habeas corpus proceeding in SuffolkCounty, which the parties resolved by a stipulated temporary parenting schedule. Venue for thedivorce action was subsequently transferred to Ulster County. The father moved for temporarycustody and the mother cross-moved for, among other things, temporary custody and childsupport. The parties thereafter agreed to accept the court's decision on their cross motions as a final custody determination. After a hearing, Supreme Court awarded sole custody to the father andordered the mother to pay child support, without making any direction as to retroactive support.The mother appeals.
"An initial child custody determination is [to be based on] the best interests of the child,[*2]taking into consideration such factors as 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] [citations omitted]; see Matter of Melissa K. v Brian K., 72 AD3d 1129, 1131 [2010]).Initially, the record fully supports Supreme Court's determination that joint custody was notfeasible due to the parties' mutual animosity and inability to communicate as to matters affectingthe children (see Matter of Henderson vMacCarrick, 74 AD3d 1437, 1440 [2010]; Matter of Martin v Martin, 45 AD3d 1244, 1245-1246 [2007]).According the requisite great deference to the court's credibility assessments, we further find asound and substantial basis in the record supporting the decision to grant custody tothe father (see Moor v Moor, 75AD3d 675, 676-677 [2010]).
After a hearing, which included the testimony of the parties and several experts, SupremeCourt performed a detailed analysis of the relevant factors and found that the father and motherwere both fit, loving parents, each demonstrating significant strengths and weaknesses. Inparticular, the court noted that the father had exhibited occasional poor judgment in such seriousmatters as maintaining unsecured guns in the home, and the mother had taken a more proactiverole in raising the children, had acted as their primary caregiver before the parties' separation andwas better aware of their needs. However, the court found that the mother's positive attributeswere outweighed by her "cumulative efforts" after the separation to interfere with the father'srelationship with the children and prevent him from having a meaningful role in their lives andby her "willingness . . . to deceive in order to achieve her goal of parenting thechildren without the [father's] involvement."
The record supports these conclusions, revealing that, among other things, the motherunilaterally moved the children several hours away from the father, sought multiple orders ofprotection against the father—all of which were ultimately dismissed—cancelledagreed-upon visitation arrangements, and made negative allegations against the father as to,among other things, substance abuse and violence that were unsubstantiated. With regard to themother's most serious claim against the father—that is, that he sexually abused one of thechildren—Supreme Court found that the child's statements had likely resulted from themethods the child's counselor used to elicit them or from manipulation by the mother, who had,in the court's view, engaged in "inappropriate coaching of the children" to support her goal ofalienating them from the father.[FN*]As to the mother's claim that she relocated to Suffolk County because she feared for her safety,we defer to Supreme Court's credibility assessment that this "[was] simply not true," and that themother's true goal in relocating was to minimize the father's parenting time with the children andobtain a tactical advantage in the divorce action. In reaching this conclusion, the court gave"substantial weight" to the testimony of a clinical psychologist called by the attorney for thechildren who, following a forensic evaluation of both parties, opined that the mother believedthat the children did not require significant involvement with the father in order to be happy andwell-adjusted. This expert further opined that the mother did not relocate to Suffolk Countybecause of domestic violence or to seek family support as she claimed, but to put geographical[*3]distance between the father and the children so that she couldparent them as she deemed appropriate without his involvement.
"Evidence that the custodial parent intentionally interfered with the noncustodial parent'srelationship with the child is so inconsistent with the best interests of the child as to, per se, raisea strong probability that the offending party is unfit to act as custodial parent" (Matter ofYoungok Lim v Sangbom Lyi, 299 AD2d 763, 764 [2002] [internal quotation marks,brackets and citations omitted]). Here, the record supports Supreme Court's conclusions that themother placed her own self-interest ahead of that of the children and lacked insight into theimportance of the children's relationship with the father and the detrimental impact of her actionsupon them, while the father showed greater willingness to foster a relationship between thechildren and the mother and to improve his parenting skills. We find no reason to disturb thedetermination that the father is more fit to act as the custodial parent (see Matter of Keefe v Adam, 85 AD3d1225, 1226-1227 [2011]; Matter ofDobies v Brefka, 83 AD3d 1148, 1151 [2011]; Posporelis v Posporelis, 41 AD3d 986, 990-991 [2007]).
Supreme Court made a limited ruling relative to child support. The mother first applied fortemporary child support in April 2009, several months after relocating to Suffolk County; inAugust 2009, the father argued in opposition that she had improperly used self-help in assumingcustody and that no child support determination should be made pending resolution of thecustody issue. Upon awarding custody to the father in March 2011, the court directedthe mother to pay prospective child support, but failed to address the issue of retroactive support.Upon review, we are unable to discern whether the mother's conduct effectively frustrated thefather's visitation rights and, if so, for what periods of time (compare Matter of Luke v Luke, 90 AD3d 1179, 1182 [2011];Matter of Dobies v Brefka, 83 AD3d at 1152; Ledgin v Ledgin, 36 AD3d 669, 670 [2007]; see alsoScheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, DomesticRelations Law § 241, at 22-23). Thus, the issue of retroactive support to the mother mustbe remitted.
Mercure, J.P., Spain and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts, and matter remitted to the Supreme Court for further proceedings not inconsistent with thisCourt's decision.
Footnote *: Notably, the child's statementsto a counselor were not otherwise corroborated, and the attorney for the child contended that thestatements were coached. The claims were determined to be "unfounded" following a childprotective investigation.