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In re Smith

Supreme Court of New York, Second Department

December 27, 2017

In the Matter of Dennis R. Smith, respondent,
v.
Michele S. Rygiel, appellant. (Proceeding No. 1) In the Matter of Michele S. Rygiel, appellant,
v.
Dennis R. Smith, respondent. (Proceeding No. 2) In the Matter of Dennis R. Smith, etc., petitioner,
v.
Michele S. Rygiel, respondent. (Proceeding No. 3) In the Matter of Michele Rygiel, etc., appellant,
v.
Dennis Smith, respondent. (Proceeding No. 4) Docket Nos. O-2875-15, O-2878-15, V-2936-15, V-3036-15

          Submitted - December 4, 2017

         D54260 C/hu

          Larkin, Ingrassia & Tepermayster, LLP, Newburgh, NY (Milana Tepermayster of counsel), for appellant in ProceedingNos. 1, 2, and 4.

          Peter W. Green, Middletown, NY, for respondent in Proceeding Nos. 1, 2, and 4.

          Karen M. Jansen, White Plains, NY, attorney for the child.

          JOHN M. LEVENTHAL, J.P. SYLVIA O. HINDS-RADIX HECTOR D. LASALLE VALERIE BRATHWAITE NELSON, JJ.

          DECISION & ORDER

         Appeal from an order of the Family Court, Orange County (Victoria B. Campbell, J.), entered July 15, 2016. The order, insofar as appealed from, after a fact-finding hearing, granted the father's petition, in effect, for sole legal and residential custody of the parties' child, denied the mother's cross petition, in effect, for sole legal and residential custody of the parties' child, and dismissed the mother's family offense petition.

         ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

         The parties, who never married, are the parents of daughter born in 2015. In July of 2015, the father filed a petition, in effect, for sole legal and residential custody of the daughter, and the mother filed across petition, in effect, for sole legal and residential custody of the daughter. The mother also filed a family offense petition, alleging that the father subjected her to harassment in the second degree. The Family Court conducted a fact-finding hearing that included the testimony of both parents, the paternal and maternal grandparents, the paternal aunt, and the maternal uncle. In addition, the court admitted a report fromacourt-appointed forensic psychiatrist. The court granted the father's petition, denied the mother's cross petition, and dismissed the mother's petition alleging a family offense. The mother appeals.

         The court's paramount concern in any custody determination is the best interests of the child under the totality of the circumstances (see Eschbach v Eschbach, 56 N.Y.2d 167, 171; Matter of Gooler v Cooler,107 A.D.3d 712, 712; Matter of Julie v Wills,73 A.D.3d 777, 777). In determining an initial petition for child custody, the court must consider, among other things, ''(1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent 's relative fitness, including his or her ability to guide the child, provide for the child's overall well being, and foster the child's relationship with the noncustodial parent; and (5) the child's desires" (Matter of Supangkat v Torres, 101 A.D.3d 889, 890). Custody determinations depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, and, therefore, deference is accorded to the court's findings in this regard (see Matter of Gooler v Gooler, 107 A.D.3d at 712). Such findings will not be disturbed unless they lack a sound and substantial basis in the record (see id.; see also Matter of Frankiv v Kalitka,105 A.D.3d 1045). Here, the record established that the mother had a history of cutting herself when she was a teenager and that the most recent episode of cutting occurred while she was pregnant, that the mother had been diagnosed with "intermittent explosive disorder, " and that although the court-appointed psychiatrist acknowledged that the mother was attending therapy, he still opined that she was emotionally fragile (see Matter of Angelina L.C. [Michael C.-Patricia H.C.J, 110 A.D.3d 793; Matter of Beckham v Vessia,63 A.D.3d 1155; Matter of Berrouet v Greaves, 35 A.D.3d460). Consequently, the Family Court's determination to grant the father's petition, and to deny the mother's cross petition, which was consistent with the opinion of the court-appointed forensic expert and the position of the attorney for the ...


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