| Matter of Barker v Dutcher |
| 2012 NY Slip Op 05217 [96 AD3d 1313] |
| June 28, 2012 |
| Appellate Division, Third Department |
| In the Matter of Brandi Eva Mae Barker, Appellant, v DaleD. Dutcher, Respondent. |
—[*1] Ivy M. Schildkraut, Monticello, for respondent. Jane M. Bloom, Rock Hill, attorney for the child.
Rose, J. Appeal from an order of the Family Court of Sullivan County (Meddaugh, J.),entered May 18, 2011, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 6, for modification of a prior order of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the unmarriedparents of a daughter (born in 2003). After the parties' 11-year relationship dissolved, FamilyCourt entered an order on consent providing for, among other things, joint custody of the childwith the father having primary physical custody during the school year and parenting time withthe mother. Days later, the mother petitioned for modification of the custody order.Following fact-finding and Lincoln hearings, Family Court treated the matter as aninitial custody proceeding in light of the brevity of the parties' agreement and awarded jointcustody with physical custody to the father and parenting time to the mother. The mother nowappeals.
The child's best interests is the paramount concern in a custody determination (see Matterof Robinson v Davis, 58 AD3d 1041, 1042 [2009]), and an initial custody determinationrequires Family Court to consider such factors as "the parents' ability to provide a stable homeenvironment for the child, the child's wishes, the parents' past performance, relative fitness,ability to guide and provide for the child's overall well-being, and the willingness of each parent[*2]to foster a relationship with the other parent" (Matter of Rundall v Rundall, 86 AD3d700, 701 [2011]). In a comprehensive decision, Family Court considered all of theappropriate factors in determining that the father's home provided more of the stability andcontinuity of the life to which the child was accustomed. Although the condition of the father'shome is cluttered, unkempt and in need of some repair, the court noted that there was no credibleevidence that the child was adversely affected—either medically, emotionally orsocially—as a result of these living conditions. Notably, the residence was in the sameunkept condition while the mother resided there for numerous years prior to the termination ofthe relationship. Moreover, the child has always lived in this house, which is part of a smallworking farm owned by her paternal grandmother, who also lives there and with whom she has aclose relationship. The mother, on the other hand, is in a more urban location in another county,and an award of physical custody to the mother would require the child to leave her horse andother pets, enroll in a new school and adapt to a lifestyle different than the country life to whichshe is accustomed. Upon our review of the record, and giving deference to Family Court'scredibility determinations, we find a sound and substantial basis to support the decision that jointcustody, with primary physical custody to the father, is in the child's best interests (see Matter of Raynore v Raynore, 92AD3d 1167, 1168 [2012]; Moor vMoor, 75 AD3d 675, 676-677 [2010]). Finally, the record belies the mother's contentionthat the parties' relationship is so acrimonious as to render an award of joint custody to beunworkable.
Mercure, J.P., Lahtinen, Stein and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.