| Matter of Roberta GG. v Leon HH. |
| 2012 NY Slip Op 07006 [99 AD3d 1057] |
| October 18, 2012 |
| Appellate Division, Third Department |
| In the Matter of Roberta GG., Appellant, v Leon HH., Respondent.(And Another Related Proceeding.) |
—[*1] Theodore J. Stein, Woodstock, for respondent. Ira Halfond, Craryville, attorney for the child.
Rose, J. Appeal from an order of the Family Court of Columbia County (Czajka, J.), enteredApril 13, 2011, which, among other things, dismissed petitioner's application, in a proceedingpursuant to Family Ct Act article 6, for custody of the parties' child.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the unmarriedparents of a son born in 1998. When the parties separated in 2007, the child resided with themother and spent visitation time with the father. During an exchange of the child in 2010, anincident occurred that led the mother to file family offense and custody petitions. The father thencross-petitioned for custody. At a preliminary appearance, a temporary order was issued at therequest of the attorney for the child prohibiting the mother's live-in boyfriend from being alonewith the child. Later, after speaking with the child in camera and conducting a fact-findinghearing, Family Court directed that the parties have joint legal custody and awarded residentialcustody to the father with liberal visitation pursuant to an established schedule to the mother. Themother appeals and we affirm.
Although the mother argues that the in camera interview with the child was improper [*2]because it occurred prior to the fact-finding hearing, it was held onthe same date and we are satisfied by our review that, contrary to the mother's speculation, itserved to corroborate evidence presented at the fact-finding hearing (see e.g. Matter of Bjorkv Bjork, 58 AD3d 951, 954 [2009], lv denied 12 NY3d 708 [2009]; Matter of Gorham v Gorham, 56 AD3d985, 987 [2008]). Further, we find no basis for the mother's request to us that we now breachthe child's right to confidentiality by releasing the transcript (see e.g. Matter of Susan LL. v Victor LL., 88 AD3d 1116, 1119 n 4[2011]; Matter of Sellen v Wright, 229 AD2d 680, 681-682 [1996]).
The mother also contends—for the first time on appeal—that Family Courtimproperly limited her presentation of evidence at the hearing. We cannot agree. Rather, themother focused her testimony on the alleged family offense and otherwise offered no evidence onher direct testimony to support the allegations in her custody petition. Nor did she offer either thetestimony of her boyfriend or any details as to her home environment. The mother's only mentionof the boyfriend was in response to the court's questioning at the conclusion of her direct case,when she asserted that the child got along "wonderfully" with him, a statement that the court didnot credit.
Although the mother argued in Family Court for sole custody on the ground that the childhad been living with her and there was no reason to change that arrangement, she concedes onappeal that this was an initial custody determination and the governing standard is the bestinterests of the child. Accordingly, the parties' informal arrangement was but one factor forFamily Court to consider (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Matter of Smith v Smith, 61 AD3d1275, 1276 [2009]). In making its determination, Family Court could also consider factorssuch as the "parents' ability to provide a stable home environment for the child, the child'swishes, the parents' past performance, relative fitness, ability to guide and provide for the child'soverall well-being, and the willingness of each parent to foster a relationship with the otherparent" (Matter of Rundall vRundall, 86 AD3d 700, 701 [2011]; accord Jeannemarie O. v Richard P., 94 AD3d 1346, 1346-1347[2012]; see Eschbach v Eschbach, 56 NY2d at 172). "On review, we will accorddeference to Family Court's ability to observe the witnesses and assess their credibility, and willnot disturb a determination so long as it is supported by a sound and substantial basis in therecord" (Matter of Rundall v Rundall, 86 AD3d at 701-702 [citations omitted]; accord Matter of Danielle TT. v MichaelUU., 90 AD3d 1103, 1103 [2011]).
The record here supports Family Court's credibility determinations and its conclusion that thechild's interests would be better served by being in the father's care. The father offereduncontradicted testimony that he spent all of his visitation time with the child, taking him to theplayground, the library, the YMCA and other activities. The father is also involved in the child'smedical care, takes the child to counseling and communicates with the counselors and the child'sschool about his needs. The evidence also revealed that, at times when the child was with thefather, he did not want to return to the mother's custody because of the stress caused by her homeenvironment. Although the father has maintained the same residence since his separation fromthe mother and the child has his own room at the residence, the father also expressed awillingness to move to keep the child in the school district that he currently attends, and FamilyCourt made such a move a condition of the custody order.
While the mother retook the stand at the conclusion of the father's testimony to say that shehad a "problem" agreeing that the child was in a depressed state, she did agree with the father andthe attorney for the child that the child needed counseling, and she agreed to participate incounseling with the father in an effort to improve their ability to coparent the child. Deferring to[*3]Family Court's credibility determinations, we are satisfiedthat a sound and substantial basis exists in the record for the conclusion that joint custody, withthe father having primary physical custody, is in the child's best interests (see Matter of Raynore v Raynore, 92AD3d 1167, 1168 [2012]; Matter of Danielle TT. v Michael UU., 90 AD3d at 1104;Matter of Rundall v Rundall, 86 AD3d at 702).
Mercure, J.P., Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the order is affirmed,without costs.