In the Matter of Dennis R. Smith, respondent,
Michele S. Rygiel, appellant. (Proceeding No. 1) In the Matter of Michele S. Rygiel, appellant,
Dennis R. Smith, respondent. (Proceeding No. 2) In the Matter of Dennis R. Smith, etc., petitioner,
Michele S. Rygiel, respondent. (Proceeding No. 3) In the Matter of Michele Rygiel, etc., appellant,
Dennis Smith, respondent. (Proceeding No. 4) Docket Nos. O-2875-15, O-2878-15, V-2936-15, V-3036-15
Submitted - December 4, 2017
Larkin, Ingrassia & Tepermayster, LLP, Newburgh, NY
(Milana Tepermayster of counsel), for appellant in
ProceedingNos. 1, 2, and 4.
W. Green, Middletown, NY, for respondent in Proceeding Nos.
1, 2, and 4.
M. Jansen, White Plains, NY, attorney for the child.
M. LEVENTHAL, J.P. SYLVIA O. HINDS-RADIX HECTOR D. LASALLE
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
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.
that the order is affirmed insofar as appealed from, without
costs or disbursements.
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.
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 ...