Adam E. v. Heather F.

• Decision Date: 08 June 2017
• Citation: 151 A.D.3d 1212,56 N.Y.S.3d 380
• Parties: In the Matter of ADAM E., Appellant, v. HEATHER F., Respondent. (Proceeding No. 1.). In the Matter of Heather F., Respondent, v. Adam E., Appellant. (Proceeding No. 2.).
• Court: New York Supreme Court — Appellate Division

151 A.D.3d 1212
56 N.Y.S.3d 380

In the Matter of ADAM E., Appellant,
v.
HEATHER F., Respondent. (Proceeding No. 1.).

In the Matter of Heather F., Respondent,
v.
Adam E., Appellant. (Proceeding No. 2.).

Supreme Court, Appellate Division, Third Department, New York.

June 8, 2017.

56 N.Y.S.3d 382

Diane V. Bruns, Ithaca, for appellant.

Peter Fee, Vestal, for respondent.

Donna C. Chin, Ithaca, attorney for the children.

Before: GARRY, J.P., LYNCH, ROSE, CLARK and AARONS, JJ.

CLARK, J.

Appeal from an order of the Family Court of Tompkins County (Cassidy, J.), entered September 28, 2015, which, among other things, granted petitioner's application, in proceeding No. 2 pursuant to Family Ct. Act article 6, for custody of the parties' children.

Adam E. (hereinafter the father) and Heather F. (hereinafter the mother) are the parents of two children (born in 2012 and 2013). In September 2013, the parties and the children moved to North Carolina to live with the children's maternal grandparents. However, the father returned to New York three months later, while the mother and the children remained in North Carolina. Shortly thereafter, in February 2014, the father filed a Family Ct. Act article 6 petition seeking custody of the children, and the mother filed a competing custody petition. Following a fact-finding hearing, Family Court granted the mother sole legal and primary physical custody of the children and, among other things, directed that the father have supervised parenting time with the children four times per year, once during each season, for a period of at least two or three consecutive nights. The father now appeals.

In child custody cases, the paramount concern is the best interests of the children, and courts must assess which custody arrangement will "best promote [the children's] welfare and happiness" (Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] [internal quotation marks and citations omitted]; see S.L. v. J.R., 27 N.Y.3d 558, 562, 36 N.Y.S.3d 411, 56 N.E.3d 193 [2016] ; Matter of Kayla Y. v. Peter Z., 125 A.D.3d 1126, 1127, 4 N.Y.S.3d 337 [2015] ). In fashioning a child custody arrangement, courts consider a variety of factors, including the quality of each home environment and each parent's relative fitness and ability to provide for the overall well-being of the children, past performance and willingness to foster the children's relationship with the other parent (see Matter of Driscoll v. Oursler, 146 A.D.3d 1179, 1181, 44 N.Y.S.3d 797 [2017] ; Matter of Smithey v. McAbier, 144 A.D.3d 1425, 1425, 42 N.Y.S.3d 400 [2016] ; Matter of Rosetta BB. v. Joseph DD., 125 A.D.3d 1205, 1206, 4 N.Y.S.3d 642 [2015] ), as well as the effect that any domestic violence may have on the children (see Matter of Kylene FF. v. Thomas EE., 137 A.D.3d 1488, 1490, 28 N.Y.S.3d 728 [2016] ; Matter of Brown v.

56 N.Y.S.3d 383

Akatsu, 125 A.D.3d 1163, 1165, 4 N.Y.S.3d 325 [2015] ; Matter of Chris X. v. Jeanette Y., 124 A.D.3d 1013, 1014, 1 N.Y.S.3d 534 [2015] ). Where the parents are unable to "effectively and directly communicate with one another to care for the child[ren]'s needs," an award of joint legal custody may not be feasible or appropriate (Matter of David J. v. Leeann K., 140 A.D.3d 1209, 1211, 32 N.Y.S.3d 686 [2016] ; see Matter of Driscoll v. Oursler, 146 A.D.3d at 1181, 44 N.Y.S.3d 797 ). Given that Family Court "is in the best position to evaluate the parties' testimony, character and sincerity [,] ... its factual findings are accorded great deference and will not be disturbed[,] unless they lack a sound and substantial basis in the record" (Matter of Fletcher v. Young, 281 A.D.2d 765, 767, 722 N.Y.S.2d 100[2001] [internal citation omitted]; see Matter of Lilly NN. v. Jerry OO., 134 A.D.3d 1312, 1313, 21 N.Y.S.3d 477 [2015] ; Rose v. Buck, 103 A.D.3d 957, 958, 962 N.Y.S.2d 356 [2013] ).

Here, there is a sound and substantial basis in the record to support Family Court's determination to grant the mother sole legal and primary physical custody of the children. The record evidence demonstrated that the mother was the primary caretaker of the children. Both the maternal grandmother and the maternal stepgrandfather testified that, while the parties were living with them, the mother would primarily feed, change and care for the children and that, although the father would watch the children alone for a period of roughly two hours, he would refuse to care for the...