State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 30, 2015 517911
____________________________________
In the Matter of DANIEL TT.,
Respondent,
v
MEMORANDUM AND ORDER
DIANA TT.,
Appellant.
(And Two Other Related Proceedings.)
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Calendar Date: March 26, 2015
Before: Peters, P.J., Lahtinen, Rose and Devine, JJ.
__________
Ted J. Stein, Woodstock, for appellant.
Betty J. Potenza, Highland, attorney for the children.
__________
Peters, P.J.
Appeal from an order of the Family Court of Ulster County
(Maney, J.), entered October 2, 2013, which, among other things,
partially granted petitioner's application, in a proceeding
pursuant to Family Ct Act article 6, for custody of the parties'
children.
Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the parents of two sons (born in
2006 and 2008). In December 2011, the mother traveled to Florida
with the children without the father's consent and in violation
of a court order prohibiting her from removing the children from
the state. The father immediately petitioned for custody and was
awarded temporary legal and physical custody of the children in
January 2012. Thereafter, he commenced several proceedings
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seeking modification of the visitation provisions of the
temporary order and alleging that the mother had committed
various family offenses. Following a fact-finding hearing,
Family Court granted the parties joint legal custody of the
children, with primary physical custody to the father and
parenting time to the mother. The mother appeals.
"An initial custody determination is controlled by the best
interests of the child[ren], taking into consideration such
factors as the parents' past performance and relative fitness,
their willingness to foster a positive relationship between the
child[ren] and the other parent, as well as their ability to
maintain a stable home environment and provide for the
child[ren]'s overall well-being" (Matter of Jarren S. v Shaming
T., 117 AD3d 1109, 1110 [2014] [internal quotation marks and
citations omitted]; see Matter of Benjamin v Lemasters, 125 AD3d
1144, 1145 [2015]; Matter of Brown v Akatsu, 125 AD3d 1163, 1164
[2015]). We accord great deference to Family Court's factual
findings and credibility determinations given its superior
position to observe and assess the witnesses' testimony and
demeanor firsthand, and will not disturb its custodial
determination if supported by a sound and substantial basis in
the record (see Matter of Kayla Y. v Peter Z., 125 AD3d 1126,
1127 [2015]; Matter of Alleyne v Cochran, 119 AD3d 1100, 1101
[2014]; Matter of DiMele v Hosie, 118 AD3d 1176, 1177 [2014]).
The record amply supports Family Court's determination that
the best interests of the children will be served by granting
physical custody to the father. While the mother has been the
primary caregiver for most of the children's lives, evidence
concerning her behavior seriously called into question her
parental judgment and fitness. Testimony was presented that the
mother shoplifted while the children were in her care and, at
times, used them to aid her in those endeavors. When she was
caught shoplifting from a department store in September 2011, the
mother declined the opportunity to call someone to pick up the
children, choosing instead to expose them to her arrest. The
mother engaged in additional criminal conduct that led to a
number of arrests and several convictions in the months preceding
the hearing, and, as previously mentioned, she disobeyed a court
order prohibiting her from removing the children from the state.
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In his testimony, the father explained that the mother regularly
screamed at the children when they misbehaved and described
several angry outbursts by the mother in their presence. After
the father was awarded temporary custody, the mother engaged in
various hostilities against him and directed a number of
accusations at him, including making an unfounded report to child
protective services that, among other things, he and the paternal
grandfather had physically and sexually abused the children.
Family Court was also concerned about the mother's ability to
financially provide for the children, noting that she was
unemployed and remained financially dependent upon her parents,
with whom she resides.
The father, on the other hand, has maintained steady
employment and provides a stable environment for the children in
the home where they have lived since birth. Further, his parents
live nearby and care for the children while he is working and the
children are not in school. While the father is not without his
own shortcomings, Family Court fully considered the father's
prior prescription drug dependency and other lapses in judgment
in the course of assessing the parties' respective strengths and
weaknesses, past performance and ability to provide for the
children's overall well-being. Considering the totality of the
circumstances and according due deference to Family Court's
determination that the father's testimony was more credible (see
Matter of Joseph WW. v Michelle WW., 118 AD3d 1054, 1057 [2014];
Matter of Mahoney v Regan, 100 AD3d 1237, 1238 [2012], lv denied
20 NY3d 859 [2013]), we find a sound and substantial basis for
the court's conclusion that an award of physical custody to the
father is in the children's best interests.1
Lahtinen, Rose and Devine, JJ., concur.
1
Although by no means determinative, we note that this
conclusion is in accord with the position advanced by the
attorney for the children both at the hearing and on appeal (see
Matter of Lawrence v Kowatch, 119 AD3d 1004, 1006 n 2 [2014];
Matter of Robert AA. v Colleen BB., 101 AD3d 1396, 1399 n 2
[2012], lv denied 20 NY3d 860 [2013]).
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ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court