State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: October 20, 2016 521648
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In the Matter of JOSEPH A.,
Respondent,
v MEMORANDUM AND ORDER
GINA ZZ.,
Appellant.
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Calendar Date: September 14, 2016
Before: McCarthy, J.P., Lynch, Rose, Devine and Mulvey, JJ.
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Theodore J. Stein, Woodstock, for appellant.
Paul L. Gruner, Kingston, for respondent.
Marian B. Cocose, Bearsville, attorney for the children.
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Devine, J.
Appeal from an order of the Family Court of Ulster County
(McGinty, J.), entered July 17, 2015, which, among other things,
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 children (born in
2008 and 2010). The mother and the father filed petitions in
2014 seeking, as is relevant here, custody of the children.
Family Court issued several temporary orders that awarded joint
legal custody of the children and specified parenting time to
each parent.
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The matters eventually proceeded to a fact-finding hearing
and, after the mother failed to appear at a continuation of that
hearing despite knowing that her last-minute request to adjourn
it had been denied and that her testimony had not yet been
completed, Family Court struck her testimony in full and
dismissed her custody petition.1 Family Court heard the
remainder of the testimony and conducted a Lincoln hearing that
day, after which it rendered a bench decision awarding the father
sole legal and primary physical custody of the children and
specified parenting time to the mother. The mother appeals from
the ensuing custody order.
We affirm. An initial custody determination focuses upon
the best interests of the children, implicating factors such as
the past performance and relative fitness of the parents, their
willingness to encourage a positive relationship between the
children and the other parent, and their ability not only to
establish a stable home environment, but also to provide for the
overall well-being of the children (see Matter of Basden v
Faison, 141 AD3d 910, 910-911 [2016]; Matter of Lawton v Lawton,
136 AD3d 1168, 1168-1169 [2016]). This Court accords due
deference to the factual findings and credibility assessments of
Family Court, and we will only disturb a custody determination if
it is unsupported by a sound and substantial basis in the record
(see Matter of Basden v Faison, 141 AD3d at 911; Matter of Lawton
v Lawton, 136 AD3d at 1169).
Family Court found the testimony of the father and paternal
grandmother to be credible, and additionally noted that the
mother's testimony would not have been credited had it been
considered. The father afforded a stable environment for the
children at the home they have resided in for most of their
lives, providing for them with a steady job that he has held for
almost a decade. The mother has accused the father of abusing
her and the children and being a habitual user of illegal drugs,
but the father denied all of those claims. His denials were
1
An amended custody petition filed by the mother had
previously been withdrawn, and she did not appeal from the order
dismissing her original custody petition upon her nonappearance.
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supported by the fact that numerous child protective reports have
been made regarding his behavior, all of which were investigated
and deemed to be unfounded. The mother, in contrast, has
displayed questionable judgment by acting to limit the father's
contact with the children, behaving aggressively toward the
paternal grandmother during custody exchanges and failing to
consistently transport the parties' daughter to school on time.
The father has attempted to communicate with the mother regarding
the children despite her hostility towards him, only to have
those efforts rebuffed. Thus, upon reviewing the record in its
totality, including a custodial evaluation prepared by a
psychologist and the confidential statements of the children, we
find a sound and substantial basis to support the order of
custody and parenting time (see Matter of Basden v Faison, 141
AD3d at 911-912; Matter of Daniel TT. v Diana TT., 127 AD3d 1514,
1515-1516 [2015]; Matter of Jarren S. v Shaming T., 117 AD3d
1109, 1110-1111 [2014]).
Lastly, to the extent that the mother contends that Family
Court was biased against her, we have examined that claim and
found it to be unavailing.
McCarthy, J.P., Lynch, Rose and Mulvey, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court