State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 7, 2016 519526
______________________________________
JARED CC.,
Respondent,
v MEMORANDUM AND ORDER
MARCIE DD.,
Appellant.
(And Three Other Related Proceedings.)
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Calendar Date: February 18, 2016
Before: Peters, P.J., Garry, Rose and Devine, JJ.
__________
Law Office of Ronald R. Benjamin, Binghamton (Ronald R.
Benjamin of counsel), for appellant.
Pomeroy, Armstrong, Casullo & Monty, LLP, Cortland
(Victoria J. Monty of counsel), for respondent.
Pamela B. Bleiwas, Ithaca, attorney for the child.
__________
Rose, J.
Appeal from an order of the Supreme Court (Campbell, J.),
entered July 14, 2014 in Cortland County, 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 unwed parents of a child (born
in 2010). In July 2011, the parties ended their relationship and
informally agreed to share custody of the child, with the mother
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serving as her primary caretaker. The informal custody
arrangement continued, apparently without incident, until April
2013, when the father began cohabiting with his then-girlfriend,
who is now his wife (hereinafter the wife). From that point
forward, the parties' ability to communicate deteriorated
rapidly. Their difficulties culminated on September 19, 2013,
when the mother sent the wife a series of threatening, profanity-
laced text messages, which were apparently touched off by the
wife's refusal to give the child sugary soda, and ultimately
resulted in criminal charges being filed against the mother.
That same night, and for multiple days thereafter, the father
received from the mother a series of equally vitriolic and
profane telephone calls and text messages.
On September 26, 2013, the father filed in Family Court a
family offense petition against the mother, which resulted in the
issuance of a temporary order of protection in favor of the
father. That proceeding was transferred to Supreme Court, where
the father, in November 2013, commenced an additional proceeding
seeking custody of the child, which he was granted on a temporary
basis. Within days of the father's petition, the mother filed an
answer and cross-petitioned for custody. Subsequently, a
fact-finding hearing was held to resolve the various issues in
the parties' petitions, including the permanent custody of the
child. Following a three-day hearing, Supreme Court issued an
order that, among other things, granted sole custody of the child
to the father and limited supervised visitation to the mother.
The mother now appeals, and we affirm.
Supreme Court thoroughly examined the evidence in this case
and, upon our own independent review of the record, we fully
agree with the court's comprehensive and well-founded
determination that awarding sole custody to the father is in the
child's best interests (see Matter of Lawton v Lawton, 136 AD3d
1168, 1169-1170 [2016]; Matter of Rosetta BB. v Joseph DD., 125
AD3d 1205, 1206 [2015]). Despite the mother's attempt to
characterize her violently threatening and vulgar September 2013
communications with the wife and the father as isolated
incidents, the record makes clear that the mother has a history
of untreated anger issues and has been prone to violent outbursts
for much of her life. While the use of foul language, without
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more, may not warrant the denial of custody (see Matter of Meyer
v Lerche, 24 AD3d 976, 977 [2005]), the court noted several
examples of how the child's repeated exposure to the mother's
violent temper has negatively impacted the child's emotional and
psychological well-being (see Matter of Goldsmith v Goldsmith, 50
AD3d 1190, 1192 [2008]; Matter of Studenroth v Phillips, 230 AD2d
247, 251 [1997]; Matter of Conklin v Rogers, 103 AD2d 895, 895
[1984]). Moreover, the fact that much of the mother's hostility
was directed at the father "reflects her unwillingness to promote
and encourage a relationship between the father and the child"
(Matter of Paul A. v Shaundell LL., 117 AD3d 1346, 1350 [2014],
lv dismissed and denied 24 NY3d 937 [2014]).
Aside from the mother's anger issues, Supreme Court had an
ample basis to further conclude that the father should be awarded
sole custody due to the mother's gross irresponsibility regarding
the child's oral hygiene (see Munson v Lippman, 2 AD3d 1252, 1253
[2003]; Matter of Studenroth v Phillips, 230 AD2d at 251). While
the mother was the child's primary caretaker, she allowed the
child to consume excessive amounts of soda, which caused the
child to suffer severe tooth decay and abscesses that will
require extensive oral surgery. The mother's claims that she
rarely gave the child soda and never took the child to a dentist
because the father would not pay for it are flatly contradicted
by documentary evidence in the record. Finally, we will not
disturb Family Court's decision to limit the mother's contact
with the child to supervised visitation, inasmuch as "[the
mother's] inability to control [her] anger in the presence of
[her] daughter is detrimental to the child's best interest[s]"
(Matter of Simpson v Simrell, 296 AD2d 621, 621-622 [2002]).
Peters, P.J., Garry and Devine, JJ., concur.
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ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court