Church v. Church

• Decision Date: 10 April 1997
• Citation: 238 A.D.2d 677,656 N.Y.S.2d 416
• Parties: In the Matter of Colleen T. CHURCH, Appellant, v. Malcolm O. CHURCH, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 416

656 N.Y.S.2d 416

238 A.D.2d 677

In the Matter of Colleen T. CHURCH, Appellant, v. Malcolm O. CHURCH, Respondent.

Supreme Court, Appellate Division Third Department.

April 10, 1997.

Teresa C. Mulliken, Delhi, for appellant.

Malcolm O. Church, Delhi, respondent in person.

Before CARDONA, P.J., and CREW, PETERS, SPAIN and CARPINELLO, JJ.

SPAIN, Justice.

Appeal from an order of the Family Court of Delaware County (Estes, J.), entered October 20, 1995, which, in a proceeding pursuant to Family Court Act article 6, inter alia, awarded sole legal custody of the parties' child to respondent.

The parties were married in 1991 and have a son, Alexander, who was born in April 1993. The parties separated in January 1995. Petitioner filed for custody in March 1995 and filed an amended petition in April 1995, contending that since the child's birth she has been the primary caretaker and feels that she is better equipped to be the custodial parent. In the interim, respondent cross-petitioned for custody. Following a full hearing, Family Court found that while both parties exhibited adequate parenting skills it would be in the best interest of the child that sole legal custody be granted to respondent. Family Court outlined several factors that served as the basis of its decision, including petitioner's unemployment, her regular weekend drinking outings after reaching the age of 21, her admitted extramarital affair, and evidence presented as to the unsanitary conditions in which petitioner and her son resided. Petitioner appeals.

We affirm. The governing standard in child custody proceedings is a consideration of the best interest of the child (see, Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260; see also, Matter of De Losh v. De Losh, 235 A.D.2d 851, 852, 652 N.Y.S.2d 821, 822; Matter of Coles v. Bailey, 229 A.D.2d 685, 686, 645 N.Y.S.2d 162, 164). Further, relevant factors in determining a child's best interest include "the quality of the parents' respective home environments, the length of time that the present custody arrangement has been in place and each parent's past performance, relative fitness, and ability to guide and provide for the child's intellectual and emotional development" (Matter of Alice A. v. Joshua B., 232 A.D.2d 777, 779, 648 N.Y.S.2d 729, 731; see, Matter of Irwin v. Neyland, 213 A.D.2d 773, 774, 623 N.Y.S.2d 18). We are also guided by the principle that the factual findings of Family Court are afforded great deference on appeal (see, Matter of De Losh v. De Losh, supra, 235 A.D.2d at 853, 652 N.Y.S.2d at 823; Matter of Kamholtz v. Kovary, 210 A.D.2d 813, 814, 620 N.Y.S.2d 576) and will not be disturbed if based upon a sound and substantial basis in the record (see, Matter of Copeland v. Copeland, 232 A.D.2d 822, 824, 648 N.Y.S.2d 805, 806, lv denied 89 N.Y.2d 806, 654 N.Y.S.2d 716, 677 N.E.2d 288; Matter of Bogert v. Rickard, 199 A.D.2d 587, 588, 604 N.Y.S.2d 331).

Here, the record reflects that sometime in August 1994, the parties separated for a couple of days because petitioner, by her own admission, had an adulterous affair and that at some point in January 1995, a more significant separation occurred when respondent moved out of the marital home. On March 6, 1995, respondent arrived at the former marital residence to drop off some clean laundry for petitioner and the child. Respondent testified that he observed petitioner getting dressed and her paramour in her bedroom getting dressed while the...