State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: February 18, 2016 519907
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In the Matter of WILLIAM BB.,
Respondent,
v MEMORANDUM AND ORDER
MELISSA CC.,
Appellant.
(And Another Related Proceeding.)
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Calendar Date: January 5, 2016
Before: McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.
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John Ferrara, Monticello, for appellant.
Gail B. Rubenfeld, Monticello, for respondent.
Michael C. Ross, Bloomingburg, attorney for the child.
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Egan Jr., J.
Appeal from an order of the Family Court of Sullivan County
(McGuire, J.), entered September 26, 2014, which, among other
things, granted petitioner's application, in a proceeding
pursuant to Family Ct Act article 6, for custody of the parties'
child.
Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the unmarried parents of a child
(born in 2001). Although the parties lived together briefly, the
mother moved out of their shared residence when the child was
approximately nine months old. For the next 12 years, the
parties had an informal custodial arrangement, with the child
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residing with the mother (and other members of the mother's
household) but enjoying parenting time with the father on a
regular basis.
In July 2013, the mother and the child moved out of the
residence that they were sharing with the mother's boyfriend – a
move apparently occasioned due to ongoing discord between the
three of them. The mother and the father previously had
discussed the possibility of the child coming to live with him
and, in September 2013, the child moved in with the father, who
resided with his mother, his sister and his nephew.1 During the
ensuing 2013-2014 school year, the child resided with the father
and primarily spent time with the mother every other weekend.
In July 2014, the father – fearing that the mother was
going to relocate out of state with the child – filed a petition
seeking custody. Shortly thereafter, the mother – citing the
child's poor academic performance while in the father's care –
cross-petitioned seeking similar relief. Following a lengthy
fact-finding hearing and a Lincoln hearing, Family Court, among
other things, granted the father's petition and awarded the
parties joint legal custody of the child with primary physical
custody to the father and visitation to the mother on alternating
weekends. This appeal by the mother ensued.2
1
The precise circumstances surrounding this change in
physical custody are subject to dispute. The mother contended
that this arrangement had been under discussion for some time,
and she finally elected to give the father an opportunity to be
the primary custodial parent. The father, although agreeing that
a change in custody had been discussed, contended that the child
was summarily dropped off at his house with a limited supply of
clothes after the mother stated that she "couldn't handle [the
child] anymore."
2
Although the mother's notice of appeal misstates the
entry date for Family Court's order, "we will exercise our
discretion and treat the notice of appeal as valid" (Matter of
Jonathan EE. [Barreiro–Alan EE.], 86 AD3d 696, 697 n 4 [2011], lv
denied 18 NY3d 806 [2012]).
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We affirm. Preliminarily, the mother and the attorney for
the child fault Family Court for failing to, among other things,
order psychological evaluations of the parties and various
investigations and reports pursuant to Family Ct Act §§ 251 (a),
255, 653 and 1034 (1) (b). Although the mother indeed requested
certain reports and evaluations in the context of her cross
petition, no further request for such evaluations was made prior
to or during the course of the fact-finding hearing, nor was any
objection raised relative to the lack thereof. Accordingly, we
deem these arguments to be unpreserved for our review (see
Musacchio v Musacchio, 107 AD3d 1326, 1327 [2013]; Matter of
Canfield v McCree, 90 AD3d 1653, 1654 [2011]; see also Matter of
Michelle S., 195 AD2d 721, 722 [1993]). In any event, the
ordering of such reports and evaluations is a matter committed to
Family Court's sound discretion, and we perceive no abuse of that
discretion here (see Matter of Adam MM. v Toni NN., 124 AD3d 955,
957 [2015]).
Turning to the merits, "[t]he paramount consideration in an
initial custody proceeding is the child's best interests, taking
into consideration such factors as the parents' past performance,
relative fitness, willingness to foster the child's relationship
with the other parent and ability to maintain a stable home and
provide for the child's overall well-being" (Matter of Benjamin v
Lemasters, 125 AD3d 1144, 1145 [2015]; see Matter of Melissa WW.
v Conley XX., 88 AD3d 1199, 1200 [2011], lv denied 18 NY3d 803
[2012]). "Given the superior position of Family Court to
evaluate the testimony and assess the credibility of witnesses,
its determination is accorded great deference and will remain
undisturbed so long as it is supported by a sound and substantial
basis in the record" (Matter of Keen v Stephens, 114 AD3d 1029,
1030 [2014] [citations omitted]; see Matter of DiMele v Hosie,
118 AD3d 1176, 1177 [2014]). Such deference is particularly
warranted where, as here, the parties present such divergent
accounts of the underlying facts (see Matter of Jodi S. v Jason
T., 85 AD3d 1239, 1241 [2011]).
Upon reviewing the record as a whole, we find that the
parties are on relatively equal footing with respect to past
performance, suitable housing and child care arrangements, as
well as their respective abilities to financially provide for the
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child and to foster a meaningful relationship between the child
and the other parent. Indeed, as Family Court observed, it is to
the parties' credit that they were able to work in a cooperative
fashion for the good of their child for the first 12 years of her
life without the benefit of a formal custody arrangement or
order. As to the issue of relative fitness, the record reflects
that the mother and the father each had demonstrated various
strengths and weaknesses over the years. Although Family Court
expressed concerns regarding the father's alcoholism,3 Family
Court was deeply troubled by what it regarded as the mother's
acts of "sabotage" with respect to the child's education, as well
as the mother's willingness to move the child back into a "high
anxiety" household with the promise that she would seek
counseling for the child if certain preexisting – and apparently
unresolved – problems persisted.
With respect to the education issue, it is apparent that
the child struggled in school both before and after she went to
live with her father; the child was either absent or tardy on
multiple occasions while residing with the mother and, although
she was promoted to the next grade, the child failed two subjects
during the 2013-2014 school year while residing with the father.
The record reflects, however, that the father was actively
engaged in providing educational support for the child – working
closely with the child's teachers and guidance counselor,
arranging for her to receive additional help both in school and
through an after-school program, assisting the child with her
homework and ensuring that he and the mother received weekly
progress reports from the school. The mother, on the other hand,
despite her advanced degrees and awareness of the child's
struggles, effectively abdicated responsibility for the child's
education to the father. In addition to making what Family Court
3
The father had three prior felony convictions for driving
while intoxicated but, unlike the parent in Matter of Colleen GG.
v Richard HH. (135 AD3d 1005 [2015]), the father was engaged in,
among other things, outpatient therapy, had attained an extended
period of sobriety in the past and had an extensive network of
individuals to provide transportation until he was able to apply
for a conditional license.
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regarded as a "conscious decision" not to be involved in the
child's education, the mother also demonstrated what Family Court
viewed as a complete disregard "for the father's role as the
custodial parent" when, despite the child's ongoing academic
issues, she (1) took the child out of school for at least three
days in order to participate in a family vacation, and (2)
allowed the child to miss two final exams at the end of the 2013-
2014 school year. Family Court also expressed concerns regarding
the family dynamic in the mother's household – specifically, the
mother's admission that the child was the impetus behind her
decision to break up with her boyfriend and move out of their
shared residence, as well as the mother's acknowledgment "that
there's a chance that [the problems that precipitated her
departure] will start up again" if she regained physical custody
of the child. Based upon such proof, Family Court determined
that the child would enjoy greater stability in the father's
household. Upon reviewing the record as a whole and granting
deference to Family Court's credibility determination, we
conclude that Family Court's findings in this regard are
supported by a sound and substantial basis in the record and, as
such, will not be disturbed. The mother's remaining arguments,
to the extent not specifically addressed, have been examined and
found to be lacking in merit.
McCarthy, J.P., Lynch and Clark, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court