| Matter of King v Barnes |
| 2012 NY Slip Op 07918 [100 AD3d 1209] |
| November 21, 2012 |
| Appellate Division, Third Department |
| In the Matter of Nicholas A. King, Respondent, v Amanda L.Barnes, Appellant. (And Two Other Related Proceedings.) |
—[*1] Michelle E. Stone, Vestal, attorney for the child.
Lahtinen, J. Appeal from an order of the Family Court of Broome County (Connerton, J.),entered November 22, 2011, which, among other things, partially granted respondent'sapplication, in three proceedings pursuant to Family Ct Act article 6, for custody of the parties'child.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the unmarriedparents of a child (born in 2005). Their relationship ended in 2008. The child continued residingwith the mother until March 2011 when, at the mother's request, the child went to live with thefather in New Jersey because the mother was temporarily without suitable housing. Claimingconcern about the mother's living conditions, the father refused to return the child and, in June2011, he petitioned for custody. The mother then petitioned for custody and, asserting that shehad not been permitted to see the child since March 2011, she commenced a separate proceedingin August 2011 alleging that the father had violated Family Court's temporary order regardingvisitation.
Family Court conducted an in camera interview of the six-year-old child and, thereafter, ahearing was held on the pending petitions, at which only the mother testified. Although hiscounsel was present, the father failed to appear for the hearing. Family Court dismissed the [*2]father's petition. However, upon considering the mother's petitions,the court granted joint legal custody with the father having primary physical custody.[FN*]While the court also determined that the father had willfully violated the visitation order, itimposed no sanction. The mother appeals.
This was an initial custody determination where the overriding concern is the best interests ofthe child (see Matter of Lynch vGillogly, 82 AD3d 1529, 1530 [2011]). The nonexhaustive list of pertinent factors inbest interests analysis include "the parents' ability to provide a stable home environment for thechild, the child's wishes, the parents' past performance, relative fitness, ability to guide andprovide for the child's overall well-being, and the willingness of each parent to foster arelationship with the other parent" (Matter of Rundall v Rundall, 86 AD3d 700, 701 [2011]). We willnot disturb Family Court's determination where it is supported by a sound and substantial basis inthe record (see Matter of Williams vWilliams, 66 AD3d 1149, 1151 [2009]).
Family Court was faced with a difficult decision since both parents had significant flaws intheir past parenting. While the record supports joint legal custody, there is inadequate proof tosupport the determination that the father should have primary physical custody. There wasvirtually no proof regarding the home environment that the father could provide. It is not clearwhat involvement he had with the child after the parties separated in 2008. It is apparent that hiswork schedule resulted in him sometimes not being home when the child was home and, whilehe had a girlfriend who lived with him, the record reveals nothing relevant about her. Many ofthese issues could have been clarified if the father had testified, and his failure to even appear atthe hearing does not reflect well on his priorities in seeking custody. Given the child's young age,his in camera statements do not receive as much weight as an older child (see Matter of Rivera v LaSalle, 84AD3d 1436, 1439 [2011]). The father was not cooperative in fostering the mother'srelationship with the child, as revealed by both the violation finding and the mother's testimony.
While the mother exercised poor judgment in living with a person she now characterized as adrug addict, her actions reflected concern about the child since she took steps to find otherhousing for him once her situation deteriorated. She testified that she was the primary caretakerfrom birth until March 2011. She had enrolled the child in prekindergarten, attended conferencesand participated in school activities. According to the mother, she had taken all responsibilities toensure that the child received medical care. When the child was in her custody, she wascooperative in arranging visits with the father. At the hearing, the mother indicated a willingnessto place the child's interests ahead of her own, as she agreed not to change custody at a time whenit would disrupt his schooling, waiting until the Christmas or summer break. She provided proofthat she had addressed her housing difficulties. She reportedly had found work and acquiredsuitable housing for the child to live with her. Upon review of the record, and particularly notingthe father's failure to provide any proof to support placing primary physical custody with him, wefind merit in the mother's argument that on this record she should receive primary physicalcustody. The matter must be remitted to establish an appropriate visitation schedule for the fatherand to determine a suitable time for the change in custody, [*3]taking into account the child's school schedule.
The remaining arguments are either academic or without merit.
Mercure, J.P., Kavanagh, McCarthy and Garry, JJ., concur. Ordered that the order ismodified, on the law, without costs, by reversing so much thereof as resulted in granting primaryphysical custody to petitioner; grant primary physical custody to respondent, and matter remittedto the Family Court of Broome County for further proceedings not inconsistent with this Court'sdecision; and, as so modified, affirmed.
Footnote *: Although the order did notspecifically state that it was granting physical custody to the father, it had that practical result asit granted various visitation (e.g., one weekend a month) to the mother.