| Matter of Jarren S. v Shaming T. |
| 2014 NY Slip Op 02983 [117 AD3d 1109] |
| May 1, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Jarren S., Respondent, v Shaming T.,Appellant. (And Another Related Proceeding.) |
Eugene P. Grimmick, Troy, for appellant.
James A. Caruso, Troy, for respondent.
Douglas J. Broda, Troy, attorney for the child.
Peters, P.J. Appeal from an order of the Family Court of Rensselaer County(Cholakis, J.), entered September 26, 2012, which, among other things, grantedpetitioner's application, in a proceeding pursuant to Family Ct Act article 6, for custodyof the parties' child.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are theunmarried parents of a daughter (born in 2002). The child resided with the mother in theCity of Troy, Rensselaer County, while the father lived primarily in Westchester County.In February 2012, after the child reported to the father that she had been hit by themother, the father commenced this proceeding seeking custody of the child. Following afact-finding hearing, Family Court awarded sole legal and primary physical custody tothe father and provided the mother with parenting time on alternate weekends, twononconsecutive weeks during the summer, and such additional periods of time as theparties may agree. The mother appeals.
"An initial custody determination is controlled by the best interests of the child,taking into consideration such factors as the parents' past performance and relativefitness, their willingness to foster a positive relationship between the child and the otherparent, as well as their ability to maintain a stable home environment and provide for thechild's overall [*2]well-being" (Matter of Keen v Stephens,114 AD3d 1029, 1030 [2014] [internal quotation marks and citations omitted]; see Bowman v Engelhart, 112AD3d 1187, 1187 [2013]; Matter of Adams v Morris, 111 AD3d 1069, 1069-1070[2013]). In reviewing such determination, we accord great deference to Family Court'scredibility assessments and factual findings, and will not disturb its determination ifsupported by a sound and substantial basis in the record (see Matter of Keen vStephens, 114 AD3d at 1030; Matter of Roberta GG. v Leon HH., 99 AD3d 1057, 1059[2012]).
Here, we find ample support in the record for Family Court's custody determination.Of particular concern were reports of corporal punishment expressed by the child in aJanuary 2012 text to the father and statements both to the father and his family. Whenquestioned, the mother openly admitted that on multiple occasions she had spanked thechild with a belt as a form of discipline. The child's maternal grandmother testified tohaving witnessed such discipline, explaining that the mother "whips" the child'sunclothed buttocks with a belt. The child feared the mother as a result, and members ofthe father's family testified that the child would often cry when it was time to return tothe mother's residence. On at least one occasion, the child hid in the father's home in anattempt not to return. Testimony also revealed that the mother frequently used profanitytoward the child.
Moreover, the mother exercised poor judgment and engaged in inappropriate, andeven bizarre, behavior. For example, she would place phone calls to the father as early as2:30 or 3:30 a.m. seeking to speak with the child. On one occasion, with knowledge thatthe father had not consented to such an arrangement, the mother left the City of Albanyin the early morning hours and arrived at the father's residence—approximately2
There was also evidence that the mother actively interfered with the father'srelationship with the child. She prohibited the child from speaking with the father for thenearly two-month period preceding the first court appearance in late February 2012. Inaddition, the mother sent the child to stay with family in North Carolina—duringthe pendency of this proceeding—without informing the father, and evenconcealed this fact from the father during the many times he called to speak with thechild. Consequently, at the time of the fact-finding hearing, a month had passed since thefather last had contact with the child. Moreover, the mother blocked the father fromaccessing the child's academic and medical records and did not consult with him abouthealth issues. Indeed, despite a February 2012 court order compelling her to do so, themother waited until May 2012 to add the father to the child's school records.
While the mother has been the child's primary caregiver since birth and the fatheronly recently began to take a more active role in her upbringing, there is nothing in therecord to indicate that the father is not equally capable of providing for the child's needs.He currently serves as a sergeant in the Army Reserves, is gainfully employed andworking towards obtaining a Bachelor's degree, and resides with his wife in his parents'four-bedroom household. Family Court found that, with the support system provided byhis wife and mother, the father is more able to provide a stable home environment for thechild. Moreover, the father encourages communication between the child and the motherwhen she is in his care, and has demonstrated a willingness to foster a relationshipbetween the two. Considering all of the relevant facts and [*3]according appropriate deference to Family Court'scredibility assessments, a sound and substantial basis exists in the record to support theaward of primary physical custody to the father (see Matter of McLaughlin v Phillips, 110 AD3d 1184,1186 [2013]; Matter ofBatchelder v BonHotel, 106 AD3d 1395, 1398 [2013]; Matter of Boulerice v Heaney,45 AD3d 1217, 1218 [2007]). Furthermore, given the evidence of, among otherthings, the mother's history of withholding information from the father, her consistentattempts to block the father's access to the child, as well as the parties' demonstrateddifficulties in communication, we disagree with the mother's assertion that Family Courtshould have granted joint legal custody to the parties (see Matter of Danielle TT. v Michael UU., 90 AD3d 1103,1104 n [2011]; Matter of Martinv Martin, 45 AD3d 1244, 1245-1246 [2007]; Matter of Scialdo v Kernan, 14AD3d 813, 814-815 [2005]).
Stein, Rose and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.