| Matter of Bambrick v Hillard |
| 2012 NY Slip Op 05574 [97 AD3d 921] |
| July 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of Thomas B. Bambrick, Respondent, v Erika MaeHillard, Appellant. (And Another Related Proceeding.) |
—[*1] Mary Jane Murphy, Binghamton, for respondent. Christopher A. Pogson, Binghamton, attorney for the child.
Spain, J. Appeal from an order of the Family Court of Broome County (Connerton, J.),entered May 20, 2011, 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, who met in Michigan, the home state of respondent (hereinafter the mother), arethe unmarried parents of a child born in Broome County in 2007. They resided in BroomeCounty until 2010, mostly together with the child at the home of the parents of petitioner(hereinafter the father). In March 2010, the mother moved with the child to the home of hermother in Michigan one week after the birth of her second child fathered by another man. Thefather married in May 2010. During the child's visit with the father and paternal grandparents inBroome County in July 2010, the father petitioned for custody and the mother also filed acustody petition. After a fact-finding hearing at which the parties and, among others, the child'sgrandmothers testified, Family Court awarded the parties joint legal custody, as each hadrequested, and directed that primary physical custody be with the father and that the mother haveextensive parenting time in Michigan. The mother now appeals, arguing that the court erred innot awarding physical custody of the child to her.[*2]
The primary concern in any child custody case is the bestinterests of the child (see Matter ofGoodfriend v Devletsah-Goodfriend, 29 AD3d 1041, 1042 [2006]). In rendering thisinitial custody determination, Family Court was required to consider numerous factors,"including each parent's ability to provide the child with a stable home environment, their pastperformance as parents, [and] their relative fitness and ability to provide for the child'swell-being" (Matter of Slovak vSlovak, 77 AD3d 1089, 1091 [2010]). We accord great deference to the court'sassessment of witness credibility and its determination of what custody arrangement will be in achild's best interests (see Matter ofBaker v Baker, 82 AD3d 1462, 1462 [2011]).
Here, the record reflects that Family Court, faced with a difficult task, made a well-reasoneddecision. At the time of the hearing, the mother was 24 years old and the father was 27 years old.While both demonstrated a strong relationship with the three-year-old child, neither is able tocare for and support him without significant support from their families. The parties have ahistory of domestic violence involving police intervention and serious substance abuse and, whileboth received addiction treatment in 2009, neither continued with all recommended services.
The father continues to be financially reliant upon his parents with whom he lives in theirthree bedroom home in Broome County situated on six acres; his wife, her four-year-old daughterand their infant (born in 2011) also reside there. He is underemployed, working per diem inconstruction, sometimes out of town; his wife is not employed. The paternal grandfather, aretiree, and grandmother, a substance abuse counselor, are bonded to the child, who had livedwith or near them all of his life; they have always helped to care for the child when the partieslived there, particularly when the parties were abusing drugs and then while they obtainedaddiction treatment.
The mother resides in the Michigan home of her mother, who she is financially reliant upon,with her infant and her 20-year-old brother. She moved there with the child shortly after the birthof her second child (and without advance notice to the father) to get away from their tumultuousrelationship and because she was overwhelmed. She is unemployed, dependent upon publicassistance, and intends to stay in Michigan to be near her extended family and support system.The child had visited Michigan with the mother four times (for about one to two weeks) prior toher relocation there. While the mother actively participated in addiction treatment while living inBroome County, she has not continued treatment as recommended in Michigan, reportedly forfinancial reasons.
Family Court thoroughly considered all of the surrounding circumstances and rationallyconcluded that it is in the child's best interests for the parents to have joint custody, and for himto primarily reside in Broome County with the father in the "only home [the child] has everknown." There, the paternal grandparents—with whom the child has "an extraordinarilyclose relationship"—can provide support and stability to the father and the child. The courtexplained that a move to Michigan with an overwhelmed mother, while perhaps best for her, wasnot in the child's best interests given, among other things, that he does not know that part of hisextended family. The court's decision is supported by a sound and substantial basis in the record,and it is therefore affirmed (see Matter of Baker v Baker, 82 AD3d at 1463).
Peters, P.J., Malone Jr., Kavanagh and Garry, JJ., concur. Ordered that the order is affirmed,without costs.