| Matter of DiMele v Hosie |
| 2014 NY Slip Op 04282 [118 AD3d 1176] |
| June 12, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Kieran DiMele, Appellant, v LeahHosie, Respondent. (And Five Other Related Proceedings.) |
Marshall Nadan, Kingston, for appellant.
Jeanette Madera, Poughkeepsie, for respondent.
Betty J. Potenza, Highland, attorney for the child.
Egan Jr., J. Appeal from an order of the Family Court of Ulster County (Lalor,J.H.O.), entered December 12, 2012, which, among other things, granted respondent'sapplication, in six proceedings pursuant to Family Ct Act article 6, for custody of theparties' child.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are theparents of a daughter (born in 2005). The parties ended their eight-year relationship inJuly 2011 after the father allegedly confronted the mother in the shower of their UlsterCounty residence—holding a bottle of lighter fluid in one hand and a lighter in theother—and choked her. After the parties went their separate ways, they devised aninformal custody/visitation schedule whereby the child resided with the mother duringthe week and spent weekends with the father in Albany County, where he initiallyresided with his sister.
In September 2011, the father commenced the first of these six proceedings seekingsole custody of the child, and the mother cross-petitioned for similar relief. Following thefiling of additional petitions, a three-day hearing ensued, at the conclusion of whichFamily Court, among other things, awarded sole legal and physical custody to the motherand weekend visitation to the [*2]father.[FN*]The father nowappeals.
We affirm. In fashioning an initial award of custody, Family Court must considernumerous factors—"including each parent's ability to furnish and maintain asuitable and stable home environment for the child, past performance, relative fitness,ability to guide and provide for the child's overall well-being and willingness to foster apositive relationship between the child and the other parent" (Matter of Melissa WW. v ConleyXX., 88 AD3d 1199, 1200 [2011], lv denied 18 NY3d 803 [2012]; see Matter of Keen v Stephens,114 AD3d 1029, 1030 [2014]; Matter of Joseph G. v Winifred G., 104 AD3d 1067, 1068[2013], lv denied 21 NY3d 858 [2013]). Given Family Court's superior ability toobserve and assess the witnesses' testimony and demeanor firsthand, its factual findingsand credibility determinations—if supported by sound and substantialevidence—will not be disturbed (see Matter of Keen v Stephens, 114AD3d at 1030; Matter ofDarrow v Darrow, 106 AD3d 1388, 1390 [2013]).
Preliminarily, the record contains ample support for Family Court's finding that anaward of joint custody was not in the child's best interests. "Although an award of jointcustody is an aspirational goal in every custody matter, such an award is not feasiblewhere, as here, the parties' relationship and history evidences an inability to work andcommunicate with one another in a cooperative fashion" (Matter of Darrow vDarrow, 106 AD3d at 1390-1391 [internal quotation marks and citations omitted];see Matter of Michael GG. vMelissa HH., 97 AD3d 993, 994-995 [2012]; Matter of Melissa WW. vConley XX., 88 AD3d at 1200).
As for Family Court's decision to award sole legal and physical custody to themother, we recognize that the mother and the father each has documented shortcomingsand has, at times, allowed the child to engage in what arguably qualify asage-inappropriate activities. Additionally, the record reflects that the father hasconsistently exercised the visitation afforded to him and that, during the time that he andthe mother resided together as a family, was actively involved in caring for the child andparticipated in her various school activities. That said, at the time of the hearing, thefather, who was enrolled in online college classes, was unemployed (having last workedin November 2011) and residing in his girlfriend's two-bedroom residence in AlbanyCounty, and his sole source of income was unemployment insurance benefits. Thefather's girlfriend has two daughters from a prior relationship and, on those weekendsthat the father's and the girlfriend's visitations with their respective offspring overlap, thechild who is the subject of this proceeding shares a bunk bed with one of the girlfriend'sdaughters. Although the mother, who remained in Ulster County, also resided in atwo-bedroom residence with her boyfriend, who also had a daughter from a priorrelationship, the mother testified that the child had her own room and, on the occasionswhen the boyfriend's daughter was in residence overnight, there was a separate bedavailable for her. Additionally, the mother was employed on a full-time basis and wasactively pursuing a nursing degree from a local community college. Finally, the recordreflects that the mother made appropriate arrangements for childcare during [*3]those times when her work/school schedule otherwiseconflicted with the child's school schedule.
Although the father clearly loves the child and has been actively involved in her life,the record nonetheless reflects that the mother is able to afford the child a more stableand consistent home environment—notwithstanding the mother's prior bouts withdepression—and is the party more likely to facilitate and encourage a meaningfulrelationship between the child and the noncustodial parent. Accordingly, we discern nobasis upon which to disturb Family Court's award of sole legal and physical custody tothe mother. To the extent that the court-appointed evaluator supported an award ofcustody to the mother and the attorney for child now argues in favor of an award of solelegal custody to the father, we note that the recommendations made by suchindividuals—although worthy of consideration if not otherwise contradicted by therecord—are not binding upon either Family Court or this Court (see Matter of Conway vGartmond, 108 AD3d 667, 668 [2013]; see also Matter of Shannon J. v Aaron P., 111 AD3d 829,831 [2013]). The father's remaining arguments in support of reversal, to the extent notspecifically addressed, have been examined and found to be lacking in merit.
Stein, J.P., McCarthy and Rose, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *:Specifically, FamilyCourt awarded the father visitation with the child three out of every four weekends eachmonth; if the month in question has five weekends, the mother is afforded a right of firstrefusal with respect thereto. Family Court also directed the parties to devise a holidayvisitation schedule by way of a proposed order. To the extent that such order exists, itdoes not appear in the record before us.