Chilbert v. Soler

• Decision Date: 01 October 2010
• Citation: 907 N.Y.S.2d 757,77 A.D.3d 1405
• Parties: In the Matter of Michele S. CHILBERT, Petitioner-Respondent, v. Arcangel L. SOLER, Respondent-Appellant. (Appeal No. 1.).
• Court: New York Supreme Court — Appellate Division

907 N.Y.S.2d 757 77 A.D.3d 1405 In the Matter of Michele S. CHILBERT, Petitioner-Respondent, v. Arcangel L. SOLER, Respondent-Appellant. (Appeal No. 1.). Supreme Court, Appellate Division, Fourth Department, New York. Oct. 1, 2010.

Shirley A. Gorman, Brockport, for Respondent-Appellant.

Alexandra Burkett, Canandaigua, for Petitioner-Respondent.

Victoria L. King, Attorney for the Child, Canandaigua, for Abigail S.

PRESENT: FAHEY, J.P., CARNI, LINDLEY, GREEN, AND GORSKI, JJ.

MEMORANDUM:

In appeal No. 1, respondent father appeals from an order awarding petitionermother sole custody of the parties' child, with supervised visitation with the father. In making an initial custody determination, "Family Court was required to consider the best interests of the child by reviewing such factors as 'maintaining stability for the child, ... the home environment with each parent, each parent's past performance, relative fitness, ability to guide and provide for the child's overall well-being, and the willingness of each parent to foster a relationship with the other parent' " ( Kaczor v. Kaczor, 12 A.D.3d 956, 958, 785 N.Y.S.2d 573). Contrary to the contention of the father, those factors weigh heavily in the mother's favor, and the court's determination that the child's best interests will be served by an award of sole custody to the mother has a sound and substantial basis in the record ( see Matter of Shaw v. Antes, 274 A.D.2d 679, 680-681, 710 N.Y.S.2d 719; see also Matter of Tompkins v. Holmes, 27 A.D.3d 846, 847, 811 N.Y.S.2d 184). The further determination "whether visitation should be supervised is a matter 'left to Family Court's sound discretion and it will not be disturbed as long as there is a sound and substantial basis in the record to support it' " ( Matter of Taylor v. Fry, 47 A.D.3d 1130, 1131, 849 N.Y.S.2d 724). Here, the record establishes that the father committed acts of domestic violence against the mother, often in the child's presence, and that he threatened to kill the mother and leave with the child. In addition, the conduct of the father during the hearing demonstrated his inability to control his behavior ( see Matter of Simpson v. Simrell, 296 A.D.2d 621, 745 N.Y.S.2d 123). Thus, "[a]lthough there is no direct evidence that [the father] had ever directed his anger at his daughter or had harmed her in any way ..., his inability to control his anger in the presence of his daughter is detrimental to the child's best interest[s] ... [, and] the record provides no basis to disturb Family Court's conclusion that limiting [the father] to supervised visitation was in the child's best interest[s]" ( id. at 621-622, 745 N.Y.S.2d 123).

In appeal No. 2, the father appeals from an amended order of protection pursuant to Family Court Act article 8, entered upon the court's determination following a fact-finding hearing that he committed the family offense of harassment in the second degree ( see § 832; Penal Law § 240.26 [1], [3] ). The record does not support the father's contention that the court based its...