| Matter of Benjamin v Lemasters |
| 2015 NY Slip Op 01500 [125 AD3d 1144] |
| February 19, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Edward Benjamin,Appellant, v Kalynn Lemasters, Respondent. |
Emily Karr Cook, Elmira, for appellant.
Pamela Bleiwas, Ithaca, for respondent.
Pamela D. Gee, Elmira, attorney for the child.
Garry, J. Appeal from an order of the Family Court of Chemung County (Keene, J.),entered November 18, 2013, which, among other things, dismissed petitioner'sapplication, in a proceeding pursuant to Family Ct Act article 6, for custody of theparties' child.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are theunmarried parents of a child (born in 2009). The mother resides in Michigan and also hasan older child and two younger children with other fathers. The father resides in NewYork. The mother was 15 years of age and residing in Michigan and the father wasapproximately two years older when the parties began an online acquaintance in 2007.Approximately one year later, the father moved to Michigan and began residing therewith the mother, in her mother's home. The parties thereafter had an unstablerelationship, separating and reconciling several times, moving frequently, and residingwith various friends or relatives, either separately or together, in four different states,including New York and Michigan. In December 2011, during a period when the partieswere living together in Michigan, the father ended the relationship and moved to the Cityof Elmira, Chemung County, taking the child with him. He asserts that he did so pursuantto the parties' agreement that he would take custody of the child; the mother claims thatthe trip was intended to be a temporary visit, with the understanding that the child wouldbe returned to Michigan after two weeks. In September 2012, the mother told the fatherthat she wished to reconcile with him. He traveled to Michigan, picked up the mother andher other children, and brought them to Elmira. After several days, without notice to thefather, the mother returned to Michigan with the children, including the subject child.She later [*2]testified that her claim about reconcilingwith the father had been a ruse, and that her true intent had been to retrieve thechild.
The father commenced this custody proceeding in September 2012 and was grantedtemporary custody of the child, who was returned to New York in February 2013.Following a fact-finding hearing, Family Court awarded sole legal and physical custodyof the child to the mother and scheduled parenting time with the father. The fatherappeals.
The paramount consideration in an initial custody proceeding is the child's bestinterests, taking into consideration such factors as the parents' past performance, relativefitness, willingness to foster the child's relationship with the other parent and ability tomaintain a stable home and provide for the child's overall well-being (see Matter of DiMele v Hosie,118 AD3d 1176, 1177 [2014]; Matter of Keen v Stephens, 114 AD3d 1029, 1030 [2014];Matter of Melissa WW. vConley XX., 88 AD3d 1199, 1200 [2011], lv denied 18 NY3d 803[2012]). Initially, we find a sound and substantial basis in the record for Family Court'sdetermination that joint custody was not feasible, based upon the parties' mutual historyof blocking one another's access to the child and their testimony that they have difficultycommunicating about the child and often misunderstand or misinterpret one another inattempting to reach agreements about her (see Bowman v Engelhart, 112 AD3d 1187, 1188 [2013];Jeannemarie O. v RichardP., 94 AD3d 1346, 1347 [2012]).
As for the award of legal and physical custody to the mother, the record reveals thatboth parents love the child, both have parental strengths, and both also have significantweaknesses, including their youth, unstable history and lack of education. The motherwas 21 years of age at the time of the fact-finding hearing, the father was 23 years of age,and both had dropped out of high school before graduating. In the father's favor, he hadbeen working steadily for the same employer for two years at the time of the hearing, wascurrent with his bills, and testified that he had sufficient income, augmented by foodstamps, to provide for the child's needs. He resided in a two-bedroom apartment wherethe child had her own room, and lived near several relatives, including cousins withwhom the child often socialized and an aunt who babysat for the child when he was atwork. He was enrolled in GED classes with the goal of obtaining his high schooldiploma and attending college.
The parties offered conflicting testimony that raised concerns relative to the father'semotional stability, however, including allegations of medication overdoses, violent andangry outbursts and threats of violence with use of weapons against the mother.Although the father's attorney argues upon appeal that this testimony should bedisregarded, we note that Family Court credited the mother's account, finding that thefather had exhibited controlling and violent behavior toward the mother and hadthreatened, intimidated and manipulated her. This Court defers to such factualdeterminations and credibility assessments (see Matter of Lopez v Robinson, 25 AD3d 1034,1035-1036 [2006]).
At the time of the hearing, the mother was residing with her other children and herfiancé—whom she reportedly married shortly after the hearing—in aleased three-bedroom home with a fenced backyard. The fiancé was employed at afactory, earning a sufficient income to permit the mother to stay at home caring for thechildren. Several members of the mother's extended family lived nearby, including hermother, sister and grandmother. She described the structured schedule that the childwould follow if placed in her custody and stated that she regularly provided her childrenwith educational activities to prepare them for school.
The testimony of both parties supports Family Court's determination that the motherhad [*3]been the child's primary caretaker during most ofher early life. As for fostering the other parent's relationship with the child, both partiesdescribed incidents in which the other parent had cut off access to the child by refusingto provide contact information or permit visits or telephone calls. However, the mothertestified at the hearing that she wanted the child to have a good relationship with bothparents and, if granted custody of the child, would permit the father to talk with the childevery day, send him pictures and maintain a good relationship with him. The father, bycontrast, testified that he would be reluctant to allow the mother to have unsupervisedvisits with the child because he distrusted her and feared that she might take the childaway from him.
The father's primary contention on appeal is that Family Court's finding that themother's testimony was more credible overall than his lacks a sound and substantial basisin the record. The father points to the mother's acknowledgment that she deceived thefather about her wish to reconcile with him in order to regain custody of the child, andthen deceived him again by removing the child to Michigan without informing him. Themother, however, was frank in admitting that she had deceived the father, testifying thatshe had done so because she did not understand the law, missed the child and believedthat this was the only way to regain contact with her. The court did not directly addressthis aspect of the mother's behavior, but—with regard to her failure to maintaincontact with the child following the father's move to New York—found that themother's failure to seek custody of the child by legal means resulted from her youth andinexperience and the father's misconduct in keeping the child from her rather than lack oflove or concern for the child. As previously noted, this Court defers to such factualdeterminations and assessments of credibility by Family Court.
The father further argues that Family Court erred in failing to consider the position ofthe attorney for the child that it would be in the child's best interests to award physicalcustody to the father. Although the position of the attorney for the child is a factor to beconsidered in determining a child's best interests, it is not determinative (see Matter ofDiMele v Hosie, 118 AD3d at 1178-1179; Matter of Graham v Graham, 24 AD3d 1051, 1054 [2005],lv denied 6 NY3d 711 [2006]). Here, the trial attorney for the child explained thathis position was based primarily upon the mother's failure to visit the child, communicatewith her or petition for custody after the father took her to New York. The court,however, credited the mother's testimony that she attempted unsuccessfully to get thechild back by, among other things, contacting police, and, as previously noted, found herto be devoted to the child. Subsequently, the appellate attorney for the child advocated infavor of the court's custody award. Considering the record as a whole, and noting that thechild's placement in Michigan avoids separating her from her half siblings (see Matterof Ebert v Ebert, 38 NY2d 700, 704 [1976]), we find no basis for disturbing thecustody award.
Finally, the father challenges Family Court's award of parenting time to him onalternate weekends in Michigan, arguing that he will be deprived of contact with thechild as he cannot travel to Michigan given the distance involved and his limitedfinancial resources. However, the court attempted to minimize the harmful impact ofthese factors by also allowing unrestricted telephone contact and scheduling parentingtime with the father in New York during holiday breaks and for a full month in thesummer (see Matter ofSchneider v Lascher, 72 AD3d 1417, 1418 [2010], lv denied 15 NY3d708 [2010]). The child's youth weighs against transporting her to New York for shortvisits, and the father has demonstrated through past travel that he is able to make trips toMichigan when necessary for the child's benefit. The court noted that it may be feasiblefor the father to move to Michigan to be closer to the child, given his unmarried statusand the "transplantable" nature of his job skills as a taxi driver (Thompson vSmith, 277 AD2d 520, 522 [2000]; compare Matter of Tropea v Tropea, 87NY2d 727, 740 [1996]). For these reasons, we find the parenting time schedule to besupported by a sound and substantial basis in the record (see Matter of McLean v Bell,35 AD3d 744, 744-745 [2006]).
[*4] Lahtinen, J.P., Devine and Clark, JJ., concur. Ordered that the order is affirmed, withoutcosts.