| Robert B. v Linda B. |
| 2014 NY Slip Op 04991 [119 AD3d 1006] |
| July 3, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 Robert B., Respondent, v Linda B.,Appellant. |
Gordon, Tepper & DeCoursey, Glenville (Jennifer P. Rutkey of counsel), forappellant.
D.J. & J.A. Cirando, Syracuse (John A. Cirando of counsel), forrespondent.
Francisco P. Berry, Ithaca, attorney for the child.
Robin A. Masson, Ithaca, attorney for the child.
Lynch, J. Appeal from an order of the Supreme Court (Ames, J.), entered March 8,2013 in Tompkins County, which, among other things, awarded plaintiff sole custody ofthe parties' younger daughter.
Plaintiff (hereinafter the father) and defendant (hereinafter the mother) are theparents of two daughters (born in 1996 and 2005).[FN1]The father commenced an action fordivorce and left the marital residence in September 2009, while the children remained inthe residence with the mother. In December 2009, the parents agreed that the motherwould have temporary custody of both children and the father would have supervisedparenting time with them. After two supervised visits, the father exercised unsupervisedparenting time with the younger daughter (hereinafter the child). A hearing on the issuesof custody and parenting time commenced in [*2]March2011 and continued on a number of days, concluding in November 2012. During thecourse of the hearing, Supreme Court granted the father sole temporary custody of thechild, citing, among other things, the negative influence of the mother and olderdaughter. The court ultimately awarded the parties joint legal custody of the olderdaughter, with physical custody to the mother, and sole legal and primary physicalcustody of the child to the father, with parenting time to the mother. The motherappeals.
The "primary concern in any custody determination is the best interest of the child"(Matter of Jolynn W. v VincentX., 85 AD3d 1217, 1217 [2011], lv denied 17 NY3d 713 [2011][citation omitted]). To address this concern, "a court must view all of the circumstanceswhile considering certain factors, such as the parents' ability to provide a stable homeenvironment for the [child], the [child's] wishes, the parents' past performance, relativefitness, ability to guide and provide for the [child's] overall well-being, and thewillingness of each parent to foster a relationship with the other parent" (Bowman v Engelhart, 112AD3d 1187, 1187 [2013] [internal quotation marks and citation omitted]). As thisCourt accords great deference to the trial court's factual findings and credibilityassessments, that court's determination will not be disturbed if supported by a sound andsubstantial basis in the record (see Matter of Jarren S. v Shaming T., 117 AD3d 1109,1110 [2014]; Bowman v Engelhart, 112 AD3d at 1188; Matter of Torkildsen vTorkildsen, 72 AD3d 1405, 1406 [2010]).
Here, during the lengthy hearing, Supreme Court considered testimony from, amongothers, Arlene Staubsinger, the court-appointed forensic psychologist, other mentalhealth treatment providers, a teacher, childcare providers, and a school counselor. Thecourt also conducted a Lincoln hearing with both children. Based on all thetestimony, the court concluded that, while the mother is a loving parent, the father ismore able to provide for the child's physical and emotional well-being. To the extent thatthe mother claims that the court's determination lacks a sound and substantial basis, wedisagree.
In her initial report prepared in 2010, Staubsinger concluded that the mother hadbecome overly enmeshed with the older daughter and that, consequently, that daughterbecame alienated from her father. During the fact-finding hearing, and after this reportwas issued, the mother introduced an audiotape of a conversation that she had with thechild, who was six years old at the time, wherein they discussed whether and how themother might be able to modify the existing visitation schedule. The audiotape revealedthe mother's inability to make decisions independently and to set boundaries for herdaughter. Moreover, it supported the forensic psychologist's concern that the child couldbecome enmeshed and alienated as a result of her mother's conduct. In a follow-up reportprepared in 2012 that focused on the child, Staubsinger concluded that the mother had"made significant gains" since the initial report, but that her personality "propagates atendency to become overly enmeshed" with the people she loves. Staubsinger noted thatwhen the child was with her father, his paramour and her children, she was comfortableand willing to talk about her mother and older sister. In contrast, when she was with hermother, she was more guarded and anxious when asked to speak about time spent withthe father.
"Evidence that the custodial parent intentionally interfered with the noncustodialparent's relationship with the child is so inconsistent with the best interests of the child asto, per se, raise a strong probability that the offending party is unfit to act as custodialparent" (Jeannemarie O. vRichard P., 94 AD3d 1346, 1348 [2012] [internal quotation marks and citationomitted]). Here, the evidence demonstrated that, as a result of the mother's conduct, theolder [*3]daughter had become severely alienated fromher father. While there was no finding that the mother's conduct was intentional, therewas also no clear indication that she recognized that the children are entitled to have ameaningful relationship with their father and that it is her responsibility to encouragesuch a relationship (see id.).[FN2]Staubsinger testified both that the childwas demonstrably happy and at ease with her father and that, due to the mother'spersonality, she was at risk of becoming enmeshed and alienated if the mother wereawarded primary custody. While Supreme Court was not required to follow the forensicpsychologist's recommendation (see Matter of Maliha v Maliha, 13 AD3d 1032, 1033-1034[2004]), it was certainly authorized to consider and credit her opinion as part of its bestinterests analysis (see Jeannemarie O. v Richard P., 94 AD3d at 1348).
Contrary to the mother's claims, Supreme Court did assess the propriety of thefather's behavior. For example, the court noted the father's "rigid" adherence to theschedule establishing the mother's telephone contact and parenting time with the child,and that such rigidity conflicted with his general obligation to encourage the child'srelationship with her mother. This conduct was attributed to guidance that the father hadreceived from certain mental health professionals and attorneys. He testified that hesought advice to help the child adjust to the custodial changes and believed that he wasacting in her best interests. While the mother also claimed that the father did not consulther with regard to the child's medical care, the court credited the father's testimony thathe believed, mistakenly, that prior consultation was unnecessary. Similarly, the fatherexplained that he advised the mother in advance that the child would be attending schoolin the school district where he lived, although he could not recall whether he disclosedthe specific school that she would attend. He testified that the school was closer to bothhis office and the mother's home. The record confirms that, at times, both parties allowedtheir mutual animosity to impede effective communication and parenting during thecourse of this prolonged and difficult dispute. Under all the circumstances, we defer toSupreme Court's determination, made after evaluating all of the conflicting testimony andevidence, that the mother was less credible than the father and his conduct was lessharmful than hers (see Matter ofParchinsky v Parchinsky, 114 AD3d 1040, 1041 [2014]; Matter of Michelle V. v BrandonV., 110 AD3d 1319, 1325 [2013]; Matter of Greene v Robarge, 104 AD3d 1073, 1076[2013]).
We are mindful that the sibling children were separated as a result of SupremeCourt's custody order, a generally undesirable result (see Eschbach v Eschbach,56 NY2d 167, 173 [1982]). Over time, however, this general preference "has beentempered by the dynamics of family life . . . where the record indicates thatthe best interest[s] of each child lies with a different parent" (Matter of Donahue vBuisch, 265 AD2d 601, 604 [1999] [internal quotation marks and citation omitted]).Here, Supreme Court's decision reflects its concern that the sisters would be separated,but that their separation was outweighed by other factors, including their ages and theconcern that the child could be negatively influenced. This assessment is supported bythe record and is entitled to deference (see Matter of Joseph WW. v Michelle WW., 118 AD3d1054, 1056-1057 [2014]).
The mother's argument that Supreme Court should have drawn a negative inferencefrom the father's failure to call certain witnesses is without merit, as she does notdemonstrate that the mental health providers were under the father's control (see Matter of LaRussa v [*4]Williams, 114 AD3d 1052, 1053-1054 [2014]).Similarly, under the circumstances, and particularly because the forensic psychologisttestified with regard to her observations of the child with her father, his paramour and herchildren, we cannot say that the court should have drawn a negative inference from thefact that the paramour did not testify (see Matter of John HH. v Brandy GG., 52 AD3d 879, 880[2008]).
Finally, while not determinative, we note that the attorney for the child argued thatthe child's best interests would be served by remaining in her father's custody (see Hughes v Gallup-Hughes,90 AD3d 1087, 1090 [2011]). The record confirms that the parents undoubtedlylove their children, but have made mistakes during the course of this acrimonious disputethat have caused their children to suffer. While it was generally acknowledged that themother is capable, there is no record basis to disturb Supreme Court's finding that, underthe circumstances, the father is the parent more able to provide for the child's physicaland emotional well-being (id. at 1089-1090). We find that there is a sound andsubstantial basis in the record for the conclusion that it was in the child's best interests togrant physical custody to the father.
To the extent not addressed herein, the mother's remaining contentions have beenconsidered and are without merit.
Stein, J.P., McCarthy, Garry and Devine, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote 1:Inasmuch as the olderdaughter turned 18 years old during the pendency of this appeal, any issues with regardto her custody or visitation are moot (see Matter of Heidi E. [Tresea F.—Phyllis G.], 68 AD3d1174, 1174 [2009]).
Footnote 2:The audiotape presentedduring the hearing actually shows otherwise.