| Matter of Adams v Morris |
| 2013 NY Slip Op 07773 [111 AD3d 1069] |
| November 21, 2013 |
| Appellate Division, Third Department |
| In the Matter of Christopher M. Adams, Respondent, vJuanita A. Morris, Appellant. (And Another RelatedProceeding.) |
—[*1] Sandra J. Garufy, Binghamton, for respondent. Christopher A. Pogson, Binghamton, attorney for the child.
Stein, J. Appeal from an order of the Family Court of Broome County (Connerton,J.), entered September 16, 2011, which, among other things, granted petitioner'sapplication, in a proceeding pursuant to Family Ct Act article 6, for custody of theparties' child.
The parties are the unmarried parents of a son (born in 2002). In 2008, after livingwith respondent (hereinafter the mother) and the child in various states across thecountry, petitioner (hereinafter the father) left them in Kansas and returned to New York.The mother and the child moved several more times and ultimately resided in Oklahoma.In the summer of 2010, the child was twice removed from the mother's care by theOklahoma Department of Human Services and, after the father became aware of thesituation, he traveled to Oklahoma and was awarded temporary custody of the child. Theparties subsequently commenced these two proceedings, each seeking custody of thechild. After a hearing, Family Court granted the father's petition, awarded him custody ofthe child and directed that the mother have visitation in Broome County. The mother nowappeals, and we affirm.
In making an initial custody determination, the primary focus is the child's bestinterests (see Matter of Gordonv Richards, 103 AD3d 929, 930 [2013]; Matter of Ames v Ames, 97 AD3d 914, 914 [2012], lvdenied 20 NY3d 852 [2012]), taking into account, among other things, the parents'past performance and relative fitness, their willingness to foster a positive relationshipbetween the child and the other parent, as well as their ability to maintain a stable homeenvironment and provide for the child's overall well-being (see Matter of Joseph G. v WinifredG., 104 AD3d 1067, 1068 [2013], lv denied 21 NY3d 858 [2013]; Matter of Bambrick v Hillard,97 AD3d 921, 921-922 [2012]; Matter of Raynore v Raynore, 92 AD3d 1167, 1168[2012]). Considering these factors, there is ample evidence in the record before us tosupport Family Court's determination that an award of custody to the father was in thechild's best interests.
While the child has resided with the mother for most of his life, her ability to providehim with a stable environment and proper care is questionable. By the time the child wasremoved from the mother's care, the child had been moved approximately a dozen timeswithin at least six different states. Notably, the primary reason for the child's removal wasthat the child was deemed to be at risk due to the mother's relationship with an individualwho she alleged had been violent with her and the child. After the mother promised tokeep the child away from this individual following the first removal, the child wasreturned to her and she immediately took the child with her to see this individual, whichresulted in the child being removed from her care the second time. The mother alsoadmitted that she had left the child, occasionally overnight, with her 13-year-old daughterwhile the mother went away with this individual. Further, when the father was firstawarded temporary custody, the child—who was then seven years old—wasnot toilet trained, was educationally delayed and suffered from serious and substantialuntreated dental problems. At the time of the hearing, the mother was unemployed,resided with her mother in Kansas, had medical problems and a history of mental healthissues.
In contrast, the father offered a more stable home environment for the child. Thefather is married, gainfully employed, and has a residence for the child, which he shareswith his wife—who also holds stable employment—and her two children.The father has addressed the child's dental issues and obtained developmental andeducational services for the child. Despite the mother's claim that she is more willingthan the father to foster a relationship between the child and the other parent, the recordreflects that, for a substantial period of time after the father left the mother and child andreturned to New York, the mother refused to provide him with their address and thefather did not know their whereabouts. Considering the record as a whole, and accordingappropriate deference to Family Court's credibility assessments, we find a sound andsubstantial basis in the record supporting the award of custody to the father and wedecline to disturb it (see Matter of Joseph G. v Winifred G., 104 AD3d at 1067;Matter of Bambrick v Hillard, 97 AD3d at 922; Matter of Barker v Dutcher, 96AD3d 1313, 1313-1314 [2012]). Further, in view of the child's age, his participationin a year-long program to address his special needs, and the mother's instability andhistory of hiding her whereabouts from the father, Family Court's determination torestrict the mother's visitation to Broome County was a proper exercise of its discretion(see generally DeLorenzo vDeLorenzo, 81 AD3d 1110, 1111-1112 [2011], lv dismissed 16 NY3d888 [2011]).
Finally, we discern no abuse of Family Court's discretion in failing to conduct aLincoln hearing, particularly considering the child's age and developmentaldelays, the representation provided by the child's attorney and the fact that no request forsuch a hearing was made (seeMatter of DeRuzzio v Ruggles, 88 AD3d 1091, 1092 [2011]; Matter ofWalker v Tallman, 256 AD2d 1021, 1022 [1998], lv denied 93 NY2d 804[1999]; compare Matter of Yeager v Yeager, [*2]110 AD3d 1207, 1209 [2013]). To the extent notspecifically addressed, the mother's remaining contentions have been examined andfound to be without merit.
Peters, P.J., McCarthy and Spain, JJ., concur. Ordered that the order is affirmed,without costs.