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
Larkin, Ingrassia & Tepermayster, LLP, Newburgh, NY
(Milana Tepermayster of counsel), for appellant in Proceeding
Nos. 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 a cross 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 from a
court-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 Gooler,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.],110 A.D.3d 793; Matter of Beckham v
Vessia,63 A.D.3d 1155; Matter of Berrouet v
Greaves,35 A.D.3d 460). 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 child, has a