OWENS, MIRIAM M. v. POUND, RICHARD G.

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

1279
CAF 15-01600
PRESENT: WHALEN, P.J., SMITH, CARNI, DEJOSEPH, AND CURRAN, JJ.

IN THE MATTER OF MIRIAM M. OWENS,
PETITIONER-APPELLANT,

V MEMORANDUM AND ORDER

RICHARD G. POUND, JR., RESPONDENT-RESPONDENT.
---------------------------------------------
IN THE MATTER OF RICHARD G. POUND, JR.,
PETITIONER-RESPONDENT,

V

MIRIAM M. OWENS, RESPONDENT-APPELLANT.

DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR
PETITIONER-APPELLANT AND RESPONDENT-APPELLANT.

CHAFFEE & LINDER, PLLC, BATH (RUTH A. CHAFFEE OF COUNSEL), FOR
RESPONDENT-RESPONDENT AND PETITIONER-REPSONDENT.

PATRICIO JIMENEZ, ATTORNEY FOR THE CHILD, HAMMONDSPORT.

Appeal from an order of the Family Court, Steuben County (Gerard
J. Alonzo, J.H.O.), entered September 9, 2015 in proceedings pursuant
to Family Court Act article 6. The order, among other things, awarded
the parties joint custody of the subject child with primary physical
placement with Richard G. Pound, Jr.

It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

Memorandum: In these proceedings pursuant to Family Court Act
article 6, petitioner-respondent mother appeals from an order, entered
after a hearing, awarding the parties joint custody of the subject
child, who was born in 2010, with primary physical placement to
respondent-petitioner father and visitation to the mother. Contrary
to the mother’s contention, there is a sound and substantial basis in
the record for Family Court’s determination that primary physical
placement with the father is in the child’s best interests (see Matter
of Baxter v Borden, 122 AD3d 1417, 1418, lv denied 24 NY3d 915; see
generally Eschbach v Eschbach, 56 NY2d 167, 171-174; Matter of
Chilbert v Soler, 77 AD3d 1405, 1406, lv denied 16 NY3d 701). The
fact that the mother was the child’s primary caretaker prior to the
parties’ separation is not determinative, and the record establishes
 -2- 1279
CAF 15-01600

that “the child is comfortable in both homes” and has strong
relationships with members of her extended family who live with the
father, i.e., her paternal grandparents and a cousin also born in 2010
(Matter of Howell v Lovell, 103 AD3d 1229, 1232; see Matter of Ray v
Eastman, 117 AD3d 1114, 1114-1115; Matter of Oravec v Oravec, 89 AD3d
1475, 1475-1476). In addition, the hearing evidence, including
evidence that the mother moved more than an hour away from the
father’s home with the child when the parties separated and denied the
father access to the child for over a month, supports the court’s
finding that the father is the more willing of the parties to foster
the other parent’s relationship with the child (see Matter of Saunders
v Stull, 133 AD3d 1383, 1384; see generally Hill v Dean, 135 AD3d 990,
993-994).

We reject the mother’s contention that the award of primary
physical placement to the father is in effect an award of custody to
the paternal grandmother (see Matter of Francisco v Francisco, 298
AD2d 925, 926, lv denied 99 NY2d 504). Although the father works as a
truck driver and has a demanding schedule, the record establishes that
he returns home each day, usually by 5:30 p.m., and that he takes care
of the child himself whenever he is at home, thereby demonstrating
that he is an active and capable parent notwithstanding his work
schedule (see Matter of Moreau v Sirles, 268 AD2d 811, 812-813; see
also Matter of Chyreck v Swift, ___ AD3d ___, ___ [Nov. 10, 2016];
Francisco, 298 AD2d at 926).

Entered: December 23, 2016 Frances E. Cafarell
Clerk of the Court