| Matter of Holland v Klingbeil |
| 2014 NY Slip Op 04100 [118 AD3d 1077] |
| June 5, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Lance Holland, Respondent, v ChristinaKlingbeil, Appellant. (And Another Related Proceeding.) |
Joseph Nalli, Fort Plain, for appellant.
Rachel A. Rappazzo, Schenectady, attorney for the child.
Garry, J. Appeal from an order of the Family Court of Fulton County (Skoda, J.),entered September 18, 2012, which, among other things, granted petitioner's application,in a proceeding pursuant to Family Ct Act article 6, for physical custody of the parties'child.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are theunmarried parents of a son (born in 2008). They separated permanently in August 2011,after which the mother relocated from Fulton County to Albany County. In February2012, the father commenced a custody proceeding, and the mother cross-petitioned forcustody shortly thereafter. Following a fact-finding hearing, the court granted joint legalcustody to the parties and primary physical custody to the father, with visitation to themother. The mother appeals.
The mother contends that Family Court's decision granting physical custody to thefather lacks a sound and substantial basis in the record.[FN*] We disagree. An initial custodydetermination is controlled by the best interests of the child, taking into consideration,among other things, "the parents' past performance and relative fitness, their willingnessto foster a positive relationship between the child and the other parent, as well as theirability to maintain a stable home environment and provide for the child's overallwell-being" (Matter of Keen vStephens, 114 AD3d 1029, 1030 [2014] [internal quotation marks and citationomitted]; see Matter ofMcLaughlin v Phillips, 110 AD3d 1184, 1185 [2013]; see also Eschbach vEschbach, 56 NY2d 167, 171-173 [1982]). In this initial custody determination, strictadherence to the factors set forth in Matter of Tropea v Tropea (87 NY2d 727[1996]) is not required; however, a parent's decision to relocate remains a pertinent factor(see Matter of Ames vAmes, 97 AD3d 914, 915 [2012], lv denied 20 NY3d 852 [2012]; Malcolm v Jurow-Malcolm, 63AD3d 1254, 1255-1256 [2009]).
The parents were the only witnesses to testify at the fact-finding hearing. Since theparents parted, the mother has moved five times, first to four different locations withinFulton County and, finally, to the Village of Ravena in Albany County. Her current homeis thus located approximately 67 miles from the home where the parties resided with thechild before their separation and in which the father still resides. The mother's currentwork schedule as a home health aide, consisting of three 12-hour shifts per week, issubject to change depending upon the health of her patient. Conversely, the father residesin the same home he has inhabited for over nine years and has adjusted his workschedule to be more regular and predictable, and to allow more time with his family. Thefather had also initiated enrollment of the child in a local Head Start program. Only uponlearning this, and following commencement of the hearing, did the mother attempt toenroll the child in a similar program near her new home.
The child has older siblings who reside with each parent, from their priorrelationships. Other family members of both parents live in Fulton County—withthe father's mother living "next door" to his residence—and no other familymembers reside near the mother's current home. The father's aunt and uncle, residing inFulton County, often provide day-care services for the child; the mother continues tocommute to Fulton County for work, and delivers the child to them. The child alsocontinues to see his pediatrician in Fulton County. The father testified that he supportsthe mother's involvement in the child's life, encouraging visitation and the developmentof their relationship; in contrast, the mother testified that the father could see the child "ifhe wants to come and get him." Reviewing the totality of the circumstances, andaccording great deference to Family Court's ability to view testimony and assess thecredibility of witnesses, we find a sound and substantial basis in the record for awardingthe father primary physical custody of the child (see Matter of Jarren S. v ShamingT., 117 AD3d 1109, 1111 [2014]; Matter of Keen v Stephens, 114 AD3d at1030; compare Matter of Bakerv Spurgeon, 85 AD3d 1494, 1497 [2011], lv dismissed 17 NY3d 897[2011]).
Peters, P.J., Stein, Egan Jr. and Clark, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *:The father did notsubmit a brief or other written statement. The attorney for the child argues in support ofFamily Court's order.