| Matter of Keen v Stephens |
| 2014 NY Slip Op 01217 [114 AD3d 1029] |
| February 20, 2014 |
| Appellate Division, Third Department |
| In the Matter of Alicia Keen, Respondent, v AnthonyStephens, Appellant. (And Another Related Proceeding.) |
—[*1] Paul G. Madison, Stamford, for respondent. Jehed D. Diamond, Delhi, attorney for the child.
Peters, P.J. Appeal from an order of the Family Court of Delaware County (Lambert,J.), entered April 19, 2012, which, among other things, granted petitioner's application, ina proceeding pursuant to Family Ct Act article 6, for custody of the parties' child.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are theunmarried parents of a son (born in 2010). In May 2011, the mother commenced thisproceeding seeking custody of the child and listed the father as the child's biologicalfather. After an order of filiation was entered establishing his paternity, the father filed apetition for custody as well. Family Court granted the mother temporary custody of thechild and, following a fact-finding hearing, awarded sole custody to the mother withsupervised visitation to the father for two hours each week. The order also provided thatthe father could apply for a modification after he has undergone a drug and alcoholevaluation and successfully completed any recommendations stemming therefrom. Thisappeal by the father ensued.
An initial custody determination is controlled by the best interests of the child, takinginto consideration such factors as "the parents' past performance and relative fitness, theirwillingness to foster a positive relationship between the child and the other parent, aswell as [*2]their ability to maintain a stable homeenvironment and provide for the child's overall well-being" (Matter of Adams v Morris, 111AD3d 1069, 1069-1070 [2013]; see Matter of McLaughlin v Phillips, 110 AD3d 1184,1185 [2013]). Given the superior position of Family Court to evaluate the testimony andassess the credibility of witnesses, its determination is accorded great deference and willremain undisturbed so long as it is supported by a sound and substantial basis in therecord (see Matter of Joseph G.v Winifred G., 104 AD3d 1067, 1068 [2013], lv denied 21 NY3d 858[2013]; Matter of Danielle TT.v Michael UU., 90 AD3d 1103, 1103 [2011]; Matter of Torkildsen vTorkildsen, 72 AD3d 1405, 1406 [2010]).
By his own admission, the father has a long-standing history of marihuana use. Heopenly acknowledged that he smokes marihuana "once or twice a week" and has done sofor "years"—including during periods of time that he was responsible for caringfor his two daughters from a previous relationship—and stated that "there's notelling" how much marihuana he will smoke on a given occasion. He was diagnosed with"[c]annabis [d]ependence" following a court-ordered mental health evaluation and, whileconceding that his marihuana use is both illegal and could impair his ability to care forhis children, the father nonetheless failed to perceive that his routine use of the drug orits presence in the home was in any way problematic. There was evidence that the fatherwould consume alcohol and then drive with his daughters in his vehicle, and testimonywas presented as to an incident where he forgot to pick the subject child up from day carebecause he had been drinking alcohol. The mother testified that she has concerns aboutthe father consuming alcohol prior to his visits with the child, explaining that, on at leastone occasion, he showed up to her home for a scheduled visitation with blood shot eyesand smelling of alcohol. Notably, although the father does not have a driver's license, hecontinues to drive his vehicle to the mother's home to attend his visitations.
While the mother has her own shortcomings, she is best able to provide stability inthis young child's life. She has been the child's primary caregiver since birth, hasfurnished a safe home environment for him and has aptly addressed his medical needs.She has also demonstrated a willingness to foster a relationship between the child and thefather, as well as the father's two daughters from a different relationship. Viewing theevidence in its totality and according appropriate deference to Family Court's credibilityassessments, we find that the award of sole custody to the mother is supported by a soundand substantial basis in the record (see Matter of Joseph G. v Winifred G., 104AD3d at 1069; Matter ofRaynore v Raynore, 92 AD3d 1167, 1169 [2012]; Matter of Danielle TT. vMichael UU., 90 AD3d at 1104; Hughes v Gallup-Hughes, 90 AD3d 1087, 1090 [2011]).Furthermore, given the father's continued drug use, his diagnoses of cannabisdependence and the recommendation that he undergo a drug and alcohol evaluation,Family Court's decision to restrict his visitation to two hours of weekly supervisedvisitation was a proper exercise of its discretion (see Matter of Joseph G. v WinifredG., 104 AD3d at 1069; Matter of Burrell v Burrell, 101 AD3d 1193, 1195 [2012];Matter of Raynore v Raynore, 92 AD3d at 1169; Matter of Beard v Bailor, 84AD3d 1429, 1431 [2011]).
Finally, we cannot say that Family Court abused its discretion in failing to sua sponteappoint an attorney for the child. "While appointment of an attorney for the child in acontested custody matter remains the strongly preferred practice, 'such appointment isdiscretionary, not mandatory' " (Matter of Ames v Ames, 97 AD3d 914, 916 [2012], lvdenied 20 NY3d 852 [2012], quoting Lips v Lips, 284 AD2d 716, 716[2001]; see Family Ct Act § 249 [a]; Matter of Swett v Balcom, 64 AD3d 934, 936 [2009],lv denied 13 NY3d 710 [2009]). Under the circumstances of this case, includingthe very young age of the child and the absence of any demonstrable prejudice arisingfrom the failure to appoint an attorney to represent him, we discern no abuse of [*3]discretion (see Moor v Moor, 75 AD3d 675, 678-679 [2010]; Matter of Burdick v Babcock,59 AD3d 826, 827 [2009]; Matter of Swett v Balcom, 64 AD3d at 936; compare Matter of Robinson vCleveland, 42 AD3d 708, 710 [2007]).
Lahtinen, Garry and Rose, JJ., concur. Ordered that the order is affirmed, withoutcosts.