Calendar Date: June 9, 2017
Katz, Troy, for appellant.
W. Toraya, Albany, for respondent.
W. Williams, Troy, attorney for the child.
Before: McCarthy, J.P., Garry, Egan Jr., Devine and Clark,
MEMORANDUM AND ORDER
from an order of the Family Court of Rensselaer County (E.
Walsh, J.), entered October 23, 2015, which, among other
things, granted petitioner's application, in proceeding
No. 1 pursuant to Family Ct Act article 6, for joint custody
of the parties' child.
Paluba (hereinafter the mother) and Gregory Paluba
(hereinafter the father) are the parents of a child (born in
2012). Following a combined hearing on proceedings that
included custody petitions filed by each parent, Family Court
issued an order in October 2015 granting the parties joint
legal and shared physical custody of the child with a
specified parenting schedule. The mother now appeals from
that order. 
we do not agree with the father and the attorney for the
child that this appeal was rendered moot by a consent order
issued in February 2016. The February 2016 order did nothing
beyond "modif[ying] and superced[ing]" the prior
orders to direct the mother to take certain steps before
taking the child to visit family in Canada. The underlying
violation petition, of which we take judicial notice, is also
narrowly focused upon the Canadian travel issue. Inasmuch as
a later alteration to a sliver of the custodial arrangement
"does not establish that the mother relinquished her
right to pursue this" appeal directed toward the
superstructure of that arrangement, we proceed to the merits
(Matter of Siler v Wright, 64 A.D.3d 926, 928
; see Hughes v Gallup-Hughes, 90 A.D.3d 1087,
1088 ; cf. Matter of Mosier v Cole, 129 A.D.3d
1346, 1347-1348 ).
the merits, the focus in an initial custody determination
such as this one is the best interests of the child (see
Eschbach v Eschbach, 56 N.Y.2d 167, 171 ;
Matter of Charles I. v Khadejah I., 149 A.D.3d 1422,
1423 ). A court may discern those interests by
examining factors including each parent's past
performance and current fitness, as well as his or her
ability to maintain a stable home environment, provide for
the child's overall well-being and foster a relationship
between the child and the noncustodial parent (see
Matter of Charles I. v Khadejah I., 149 A.D.3d at
1423; Matter of Snow v Dunbar, 147 A.D.3d 1242, 1243
). The credibility assessments and factual findings
made by Family Court in the course of a best interests
analysis are entitled to deference, and we will not disturb
the resulting custody determination unless it lacks a sound
and substantial basis in the record (see Matter of
Spoor v Carney, 149 A.D.3d 1209, 1210 ; Matter of
Snow v Dunbar, 147 A.D.3d at 1243).
mother does not focus upon the award of joint legal custody
and, in any event, she and the father testified to normally
being able to communicate for the benefit of the child
(see Matter of Ryan v Lewis, 135 A.D.3d
1135, 1136-1137 ). As for the question of physical
placement, the parties live with their respective parents and
each maintains a stable living environment for the child. The
child has a loving relationship with both parties and her
grandparents as well as, in the father's case, her half
sister. The mother was concerned by what Family Court aptly
categorized as "rigid behaviors and bizarre humor"
on the part of the father. That being said, Family Court
credited the testimony of the father and the paternal
grandparents that cast doubt as to whether some troubling
behavior occurred and portrayed concerns as to the rest as
overblown. Family Court accordingly found, after grappling
with the relevant factors in a thorough decision, that a
shared physical custody arrangement was in the child's
best interests. In view of the foregoing, and seeing no
reason to forgo the usual deference to which the credibility
determinations of Family Court are entitled, we find a sound
and substantial basis in the record to support Family
Court's award of custody (see Matter of
Manell v Manell, 146 A.D.3d 1107, 1109- 1110 ;
Matter of Bailey v Blair, 127 A.D.3d 1274, 1276-1277
that the order is affirmed, without costs.
McCarthy, J.P., Garry, Egan Jr. ...