| Matter of Kayla Y. v Peter Z. |
| 2015 NY Slip Op 01495 [125 AD3d 1126] |
| February 19, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Kayla Y., Appellant, v Peter Z.,Respondent. (And Two Other Related Proceedings.) |
Gerald D. Raymond, Chittenango, for appellant.
Abbie Goldbas, Utica, for respondent.
Mark A. Schaeber, Liverpool, attorney for the child.
Rose, J. Appeal from an order of the Family Court of Madison County (McDermott,J.), entered September 24, 2013, which, among other things, granted respondent'sapplication, in three proceedings pursuant to Family Ct Act article 6 and/or article 8, forcustody of the parties' child.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are theunmarried parents of a daughter (born in 2008). The parties separated in 2010 andinformally shared parenting time with the child until the mother was involved in analcohol-related domestic violence incident with her live-in boyfriend in March 2012,after which the father insisted on supervised visitation. In July 2012, the mother filed apetition for custody and, in August 2012, she absconded with the child from a supervisedvisitation without the father's knowledge or consent. The father immediately filed a crosspetition for custody and obtained an order granting him temporary custody.[FN*] Family Court issued asecond temporary order that [*2]retained custody with thefather and, among other things, conditioned the mother's visitation on her boyfriend notbeing present. After a hearing, Family Court concluded that, despite the father's ownshortcomings, he offered a more stable environment for the child and would foster thechild's relationship with the mother. Family Court awarded the father sole custody withliberal parenting time to the mother. The mother appeals.
"When making an initial custody determination, a court's primary concern is 'the bestinterest of the child, and what will best promote [the child's] welfare andhappiness' " (Matter ofKoch v Koch, 121 AD3d 1201, 1201 [2014], quoting Eschbach vEschbach, 56 NY2d 167, 171 [1982]). Relevant factors include " 'theparents' past performance and relative fitness, their willingness to foster a positiverelationship between the child and the other parent, as well as their ability to maintain astable home environment and provide for the child's overall well-being' " (Matter of Keen v Stephens,114 AD3d 1029, 1030 [2014], quoting Matter of Adams v Morris, 111 AD3d 1069, 1069-1070[2013]; accord Matter ofHolland v Klingbeil, 118 AD3d 1077, 1078 [2014]). "We give due deference toFamily Court's ability to observe the witnesses and assess their credibility, and we willnot disturb its determination if it is supported by a sound and substantial basis in therecord" (Matter of Koch v Koch, 121 AD3d at 1202 [citations omitted]; see Matter of Alleyne vCochran, 119 AD3d 1100, 1101 [2014]; Matter of Jarren S. v Shaming T., 117 AD3d 1109, 1110[2014]).
The father, who is disabled and unemployed, has maintained a stable residence inclose proximity to the paternal grandmother, who provides assistance in caring for thechild. Family Court credited the father's testimony that he is engaged in the child'seducation and regularly attends her school activities, while the mother is onlysporadically involved. Although the father testified that he uses marihuana for pain, therewas no showing that such use had ever endangered the child. And while the father has ahistory of psychiatric treatment, the evidence established that his condition is stable andhis history does not interfere with his ability to care for the child.
While finding that the father has a stable home, Family Court expressed its concernover the mother's less stable home environment. The mother and her boyfriend testifiedthat the March 2012 domestic violence incident occurred when they were both heavilyintoxicated, to the extent that they could not remember the details of how the motherended up with a severe black eye. The mother also did not offer any plan to separate fromthe boyfriend if she were to be granted custody, despite the fact that the temporary orderin effect at the time of trial did not allow the child to be in his presence.
Although the mother contends that the father will not foster the child's relationshipwith her based on his prior conduct in unilaterally limiting her visitation after thedomestic violence incident instead of filing a petition for custody, Family Court creditedhis testimony that he did not file a petition in deference to the maternal grandmother'srequest that he not do so in order to avoid further emotional turmoil for the mother. Incontrast, the evidence established that the mother surreptitiously took the child from thefather's custody and, on another occasion, deprived the father of an opportunity to takethe child to a school event for fathers and daughters because it occurred during herparenting time, despite the fact that the father had previously allowed the mother to takethe child to a similar event for mothers that occurred while he had the child. Based onthese circumstances, and according deference to Family Court's credibilitydeterminations, the record provides a sound and substantial basis for the award ofcustody to the father, and that determination will not be disturbed (see Matter of Kochv Koch, 121 AD3d at 1203; Matter of Jarren S. v Shaming T., 117 AD3d at1111; Matter of Raynore vRaynore, 92 AD3d 1167, 1168-1169 [2012]).
[*3] Peters, P.J., Egan Jr. and Clark, JJ., concur. Orderedthat the order is affirmed, without costs.
Footnote *:The mother filed afamily offense petition against the father claiming that he was driving erratically throughher trailer park while looking for the child. Family Court dismissed the petition, and themother does not challenge that result on the appeal.