Calendar Date: February 16, 2017
Bloom, Monticello, for appellant.
Michelle I. Rosien, Philmont, for respondent.
Heller, Rock Hill, attorney for the children.
Before: Peters, P.J., Lynch, Rose, Devine and Mulvey, JJ.
MEMORANDUM AND ORDER
from an order of the Family Court of Sullivan County
(Meddaugh, J.), entered May 26, 2015, which, among other
things, granted petitioner's application, in proceeding
No. 2 pursuant to Family Ct Act article 6, to modify a prior
order of custody.
LL. (hereinafter the father) and Tanya LL. (hereinafter the
mother) are the parents of two sons (born in 1997 and 1999)
and a daughter (born in 2004) . Pursuant to a July 2013
order, the mother and the father shared joint legal custody
of the subject children with physical custody to the mother
and liberal parenting time to the father. Between August 2013
and January 2015, the parties filed a series of petitions,
all of which either alleged a violation of the existing
custody order by the other parent and/or sought modification
of such order. In October 2013, Family Court suspended all
visitation between the father and the children based on the
mother's allegations that the father sexually abused the
daughter. Subsequently, fact-finding and Lincoln
hearings were held, and a psychological evaluation of, among
others, the mother, the father and the children was
conducted. Thereafter, based upon the psychological report,
Family Court issued an interim order directing that the
father and the children attend therapeutic visitation. Family
Court ultimately dismissed all of the petitions except the
mother's October 2013 modification petition, awarded her
sole custody of the children and continued therapeutic
visitation between the father and the children with the goal
that such visitation would eventually resume outside of the
therapeutic setting. The father appeals.
father contends that Family Court's determination to
award the mother sole custody of the children lacks a sound
and substantial basis in the record. Preliminarily, we note
that the father does not appear to challenge Family
Court's finding that a change in circumstances existed
warranting an inquiry into the children's best interests
(see Matter of Angela N. v Guy O., 144 A.D.3d 1343,
1345 ; Matter of Zakariah SS. v Tara TT., 143
A.D.3d 1103, 1104 n 1 ). In any event, ample evidence
presented by both parties establishing a breakdown in their
communication and cooperation with respect to the children
supports such determination (see Matter of Thomas FF. v
Jennifer GG., 143 A.D.3d 1207, 1208 ; Matter
of Knox v Romano, 137 A.D.3d 1530, 1531 ).
joint custody no longer feasible, Family Court was then
required to determine what custodial arrangement would
promote the best interests of the child[ren]"
(Matter of Williams v Williams, 66 A.D.3d 1149, 1151
 [citations omitted]; see Matter of Paul A. v
Shaundell LL., 117 A.D.3d 1346, 1348 , lv
dismissed and denied 24 N.Y.3d 937');">24 N.Y.3d 937 ). This inquiry
"involves the examination of several factors, including
the relative fitness, stability, past performance, and home
environment of the parents, as well as their ability to guide
and nurture the child[ren] and foster a relationship with the
other parent" (Matter of Rockhill v Kunzman,
141 A.D.3d 783, 784  [internal quotation marks,
brackets and citations omitted]; see Matter of Vanita UU.
v Mahender VV., 130 A.D.3d 1161, 1163 , lv
dismissed and denied 26 N.Y.3d 998');">26 N.Y.3d 998 ). "In
considering such factors, Family Court's factual findings
and credibility determinations are entitled to deference,
particularly where, as here, Family Court was well acquainted
with the parties" (Matter of Bailey v Blair,
127 A.D.3d 1274, 1276  [internal citations omitted]).
we find that Family Court's determination to award sole
custody to the mother and to continue therapeutic visitation
between the father and the children is supported by a sound
and substantial basis in the record. To this end, we reject
the father's contention that the mother parentally
alienated the children in view of, among other things, the
unrebutted testimony of the mother and the oldest child that
the mother strongly encouraged the children to visit with the
father (see Finn v Finn, 277 A.D.2d 834, 835
). Furthermore, there is no evidence that the mother
pursued allegations of sexual abuse against the father with
respect to the daughter once such allegations were determined
to be unfounded (compare Matter of Chase v Chase, 34
A.D.3d 1077, 1080 ). Moreover, unlike the father, who
reportedly had little or no income and was financially
dependent on his domestic partner, the mother has been
regularly employed and is able to provide a stable,
structured and supportive environment for the children. In
addition, the parties' homes are approximately 100 miles
apart, and the children have no ties to the father's
place of residence. In view of the foregoing proof, the
Lincoln hearing testimony and the recommendation of
the psychological report calling for therapy and repair of
the children's relationship with the father, we find the
requisite sound and substantial basis in the record for the
conclusion that the best interests of the children warrant an
award of sole custody to the mother and therapeutic
visitation to the father (see Matter of Mikell v
Bermejo, 139 A.D.3d 954, 955 ; Matter of Knox
v Romano, 137 A.D.3d at 1531; Matter of Cid v
DiSanto, 122 A.D.3d 1094, 1096 ; Nolan v
Nolan, 104 A.D.3d 1102, 1105 ).
Rose, Devine and Mulvey, JJ., concur.
that the order is ...