Calendar Date: February 22, 2017
Stein, Woodstock, for appellant.
C. Silverstein, Latham, for respondent.
Potenza, Highland, attorney for the children.
Before: Egan Jr., J.P., Lynch, Rose, Clark and Mulvey, JJ.
MEMORANDUM AND ORDER
from an order of the Family Court of Ulster County (Mizel,
J.), entered February 29, 2016, which, among other things,
granted petitioner's application, in a proceeding
pursuant to Family Ct Act article 6, for custody of the
(hereinafter the father) and respondent (hereinafter the
mother) are the parents of three children (born in 2002, 2006
and 2011). The mother and father lived together with the
children in Ulster County until late 2014, when the mother
took the three children to live in a domestic violence
shelter located in Dutchess County. In January 2015, the
children began residing with the father again and the mother
also returned to the father's residence for approximately
one month while she recuperated from a surgery. In March
2015, the mother returned to the shelter in Dutchess County
and the father filed an emergency petition for custody of the
children. Thereafter, the mother filed a custody petition in
Dutchess County, which was transferred to Ulster County. In
April 2015, Family Court awarded temporary custody to the
father, with supervised parenting time to the mother. A
fact-finding hearing was conducted over two days in August
2015, and Family Court conducted a Lincoln hearing
with each of the children. Family Court awarded sole legal
and primary physical custody of the children to the father,
and granted the mother unsupervised parenting time and full
access to the children's medical and educational records.
The mother now appeals.
"primary concern in an initial custody determination is
the best interests of the children. This determination is
made by reviewing such factors as maintaining stability for
the child[ren], the child[ren's] wishes, the home
environment with each parent, each parent's past
performance, relative fitness, ability to guide and provide
for the child[ren's] overall well-being, and the
willingness of each parent to foster a relationship with the
other parent" (Matter of Lilly NN. v Jerry OO.,
134 A.D.3d 1312, 1313  [internal quotation marks and
citations omitted]). "[W]e accord great deference to
Family Court's credibility assessments and factual
findings, and will not disturb its determination if supported
by a sound and substantial basis in the record"
(Matter of Snow v Dunbar, 147 A.D.3d 1242, 1243
 [internal quotation marks and citation omitted]).
Deference is especially warranted "where, as here, the
court was faced with the difficult task of choosing between
two less than perfect parents" (Matter of Greenough
v Imrie, 140 A.D.3d 1365, 1365  [internal
quotation marks and citation omitted]).
evidence at the fact-finding hearing revealed that both
parents endeavored to provide for the children. The father
was living in a hotel with the children but had plans to move
into an apartment. Similarly, the mother was living in the
shelter but planned to move into an apartment with her
paramour. Although the father testified that the paramour
sexually abused the oldest child, an investigation by Child
Protective Services determined that this claim was unfounded.
Both parents testified that they planned to move outside of
the area served by the school district where the children had
been attending school. The mother was not employed. The
father worked as a certified nursing assistant, but his
testimony was not clear with regard to how many hours he
worked each week. The father explained that he had friends
who would help care for the children if he was working, and
if they were not at school or day care.
not disputed that the mother was the children's primary
caregiver before the parties separated. She was able to
testify with regard to the schools that the children attended
and their teachers, but the father was not. He explained, in
effect, that it was not until he assumed custody of the
children that he needed to pay attention to such things.
According to the mother, the father had been physically and
emotionally abusive to her throughout their marriage, often
in the presence of the children. According to the father, the
mother suffered from various mental illnesses. On this point,
the mother confirmed that she was being treated for
depression and posttraumatic stress disorder and that she was
once hospitalized for her mental illness. She attributed her
condition to the father's emotional and physical abuse
over the years. Neither party submitted any medical evidence.
record, we are unable to conclude that Family Court's
determination was without sound and substantial support in
the record. To their credit, each parent testified that the
other was capable. In our view, both parents' testimony
was frequently evasive and defensive, both parents had
obvious shortcomings and neither had an ideal plan for the
children. The parties' continuing inability to
communicate, a fact not disputed by the mother, supported the
court's determination that joint legal custody was not
feasible (see Matter of Berezny v Raby, 145 A.D.3d
1356, 1358 ; Matter of Smithey v McAbier, 144
A.D.3d 1425, 1426 ; Matter of Jarren S. v Shaming
T., 117 A.D.3d 1109, 1111 ). Family Court's
task was a difficult one and, when we consider and defer to
its superior ability to assess and observe the parents'
credibility and demeanor, we decline to disturb its
determination to award sole legal and primary physical
custody to the father with parenting time to the mother
(see Matter of Smithey v McAbier, 144 A.D.3d at
1426; Matter of Kayla Y. v Peter Z., 125 A.D.3d
1126, 1128 ; Matter of Morrow v Morrow, 2
A.D.3d 1225, 1226-1227 ).
Jr., J.P., Rose, Clark and ...