| Matter of Christina MM. v George MM. |
| 2013 NY Slip Op 00961 [103 AD3d 935] |
| February 14, 2013 |
| Appellate Division, Third Department |
| In the Matter of Christina MM.,Appellant, v George MM., Respondent. (And Two Other RelatedProceedings.) |
—[*1] MaryAnne Bukolt-Ryder, Plattsburgh, for respondent. Jennifer R. Briggs, Lake Placid, attorney for the children.
McCarthy, J. Appeals (1) from an order of the Family Court of Essex County(Meyer, J.), entered August 23, 2011, which, in a proceeding pursuant to Family Ct Actarticle 8, granted respondent's motion to dismiss the petition, and (2) from a correctedorder of said court, entered September 6, 2011, which, among other things, partiallygranted respondent's application, in two proceedings pursuant to Family Ct Act article 6,for custody of the parties' children.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are themarried parents of a son (born in 2001) and a daughter (born in 2002). In January 2011,the mother moved out of the marital residence without the children and moved into anapartment in a different school district. Several months later, she commenced the first ofthese proceedings seeking custody of the children. The father cross-petitioned for solecustody. The mother then commenced the third of these proceedings, alleging a familyoffense in that the father yelled and screamed at her when picking up the childrenpursuant to the temporary order of custody. At the end of the mother's testimony, FamilyCourt granted the father's motion to dismiss the family offense petition. At theconclusion of the hearing, the court awarded the parties joint legal custody, with primaryphysical custody to the father and a liberal schedule of visitation to the mother. Themother appeals.[*2]
Family Court properly dismissed the familyoffense petition due to insufficient proof. The mother bore the burden of proving afamily offense by "a fair preponderance of the evidence" (Family Ct Act § 832).She alleged that the father committed harassment in the second degree, which requiredproof that he, "with intent to harass, annoy or alarm [her,] . . . engage[d] ina course of conduct or repeatedly commit[ted] acts which alarm[ed] or seriouslyannoy[ed her] and which serve[d] no legitimate purpose" (Penal Law § 240.26[3]). The mother testified that each time the father came to pick up the children, a total offour or five times, he yelled and screamed at her. Her testimony was fairly vague, statingthat he would talk about the evidence he had for court on the custody dispute and that shewas not going to get the children, and how this was stressful and upsetting to her. Thisgeneralized testimony was insufficient to prove that the father intended to harass or alarmher, that he engaged in a course of conduct that alarmed or seriously annoyed her or thathis actions served no legitimate purpose (see Matter of Charles E. v Frank E., 72 AD3d 1439, 1441[2010]; compare Matter ofChadwick F. v Hilda G., 77 AD3d 1093, 1094 [2010], lv denied 16NY3d 703 [2011]). Hence, the court properly dismissed the family offense petition.
Family Court's determination to grant primary physical custody to the father has asound and substantial basis in the record. The court noted that each parent would foster arelationship with the other parent, although the mother did denigrate the father by tellingthe children that she left the home due to his verbal abuse and he would not let herreturn. The father spends time on his race car hobby and the mother previously was afrequent marihuana user, but the court found that these circumstances did not rendereither parent unfit. The mother did place her own interests above those of the children, asevidenced by her moving from the home without them and selecting an apartment in adifferent school district. Despite enrolling the children in her local school district, shetestified that she believed that they should remain in their school, yet she had no realisticplan of how to get them to that school or pick them up around her work schedule. Themother's work schedule changed each week and she had very limited resources to carefor the children. The father had a consistent work schedule, his mother watched thechildren before school and his sister watched them after school. The father offered thechildren more stability, allowing them to continue to live on the same property wherethey had lived for most of their lives and to attend the school where they were doing welland had friends. Giving "deference to Family Court's ability to observe the witnesses andassess their credibility," we agree with the court's determination that awarding primaryphysical custody to the father is in the children's best interests (Matter of Rundall v Rundall,86 AD3d 700, 701 [2011]; see Matter of Siler v Wright, 64 AD3d 926, 928-929[2009]).
Rose, J.P., Spain and Stein, JJ., concur. Ordered that the order and corrected orderare affirmed, without costs.