| Matter of McLaughlin v Phillips |
| 2013 NY Slip Op 06754 [110 AD3d 1184] |
| October 17, 2013 |
| Appellate Division, Third Department |
| In the Matter of Kelle R. McLaughlin, Appellant, vChristopher A. Phillips, Respondent. (And Another RelatedProceeding.) |
—[*1] Daniel Gartenstein, Kingston, for respondent. Janet Schwarzenegger, Cairo, attorney for the children.
Garry, J. Appeal from an order and an amended order of the Family Court of GreeneCounty (Tailleur, J.), entered July 12, 2012 and August 21, 2012, which, among otherthings, granted respondent's application, in a proceeding pursuant to Family Ct Actarticle 6, for custody of the parties' children.
The parties are the parents of two children (born in 2007 and 2010). They livedtogether in South Carolina for several years, excepting a one-year separation, untilshortly before the birth of the younger child. Petitioner (hereinafter the mother) thenmoved to New York with the older child without advance notice to respondent(hereinafter the father). When the mother commenced the first of these custodyproceedings pursuant to Family Ct Act article 6, she was residing in the Town of Athens,Greene County, near the home of her father (hereinafter the grandfather). The fatherremained in South Carolina.
Following an initial hearing, Family Court issued a temporary order granting jointlegal custody to the parties and residential custody to the mother. Shortly thereafter, thefather advised the court that he had discovered that the grandfather—who visitedthe children daily and often [*2]provided day-careservices—was a risk level III registered sex offender. The court issued a temporaryorder of protection prohibiting the grandfather from having contact with the children,and the father commenced the second of these custody proceedings. After a hearing, thecourt awarded residential custody to the father and joint legal custody to both parties, anddirected that any visitation with the grandfather was to be supervised. The motherappeals.
The best interests of the child is the overriding concern in any custody dispute (see Matter of Gordon vRichards, 103 AD3d 929, 930 [2013]; Matter of Ames v Ames, 97 AD3d 914, 914 [2012], lvdenied 20 NY3d 852 [2012]). In making this initial custody determination, FamilyCourt was required to consider such factors as each parent's relative fitness and pastperformance, ability to provide for the children's well-being and furnish a stable homeenvironment, and willingness to foster relationships with the other parent (see Matter of Barker vDutcher, 96 AD3d 1313, 1313 [2012]; Matter of Lynch v Gillogly, 82 AD3d 1529, 1530 [2011]).Here, the father was honorably discharged from the Marine Corps, has obtained anAssociate's degree, and is working toward obtaining a Bachelor's degree. He is employedand able to support the children and provide them with housing, which Family Courtfound adequate and appropriate, and which is located adjacent to his parents' home. Hismother testified regarding her close relationship with the older child. Other members ofthe father's extended family, as well as some of the mother's relatives, also live in theregion.
The mother is unemployed, depending upon public assistance for support. She hasmoved several times since she left South Carolina and has no relatives or support systemin New York other than the grandfather. The grandfather was convicted in Iowa ofmultiple acts of sexual abuse perpetrated during the mother's childhood against four girlsbetween the ages of 11 and 17, some of whom were the mother's friends. Following aNew York risk level redetermination proceeding conducted in 2005, the grandfather wasclassified as a risk level III sex offender—that is, an offender with a high risk ofrecidivism who poses a threat to public safety (see Correction Law § 168-l[6] [c]).
The record supports Family Court's observation that the mother minimized anddenied the seriousness of the grandfather's criminal history and the potential for harm tothe children. She testified that although she was generally aware of the grandfather'sconvictions during her childhood, she had tried to "block" or "bury" these memories, anddid not investigate the details of his crimes until she was preparing for the custody trial.She acknowledged that she permitted the grandfather to have unlimited, unsupervisedaccess to the children before the protective order was issued, and she stated that she didnot believe he posed any threat to them. She also testified—and the grandfatherconfirmed—that she and the grandfather made an intentional decision to concealthe grandfather's status as a sex offender from the father because they believed that thiswas "none of [his] business."[FN*]Although the mother had previously been the primary caretaker for the children, in viewof all the evidence—in particular, the father's more stable finances and extendedsupport system, and the mother's poor parental judgment in choosing to conceal thegrandfather's criminal history from the father and to relocate to a place where thegrandfather was her only support—we find Family Court's custody determinationto be supported by a sound and substantial basis in the record (see Matter of Richardson vAlling, 69 AD3d 1062, 1063-1064[*3][2010];Matter of Roe v Roe, 33AD3d 1152, 1153 [2006]; see also Matter of Albert T. v Wanda H., 43 AD3d 1320,1321 [2007]; Matter of RichardC.T. v Helen R.G., 37 AD3d 1118, 1118-1119 [2007]).
Peters, P.J., Rose and Lahtinen, JJ., concur. Ordered that the order and amendedorder are affirmed, without costs.
Footnote *: The father learned aboutthe grandfather's history by conducting an Internet search.