Chyreck v. Swift

• Decision Date: 10 November 2016
• Citation: 144 A.D.3d 1517,40 N.Y.S.3d 849,2016 N.Y. Slip Op. 07436
• Parties: In the Matter of Donielle L. CHYRECK, Petitioner–Appellant, v. Joseph R. SWIFT, Respondent–Respondent. In the Matter of Joseph R. Swift, Petitioner–Respondent, v. Donielle L. Chyreck, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 1517

40 N.Y.S.3d 849

2016 N.Y. Slip Op. 07436

In the Matter of Donielle L. CHYRECK, Petitioner–Appellant,

v.Joseph R. SWIFT, Respondent–Respondent.

In the Matter of Joseph R. Swift, Petitioner–Respondent,

v.Donielle L. Chyreck, Respondent–Appellant.

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

Nov. 10, 2016.

Wagner & Hart, LLP, Olean (Janine Fodor of Counsel), for Petitioner–Appellant and Respondent–Appellant.

Deborah J. Scinta, Attorney for the Children, Orchard Park.

PRESENT: PERADOTTO, J.P., CARNI, DeJOSEPH, NEMOYER, AND CURRAN, JJ.

MEMORANDUM:

Petitioner-respondent mother commenced this proceeding pursuant to article 6 of the Family Court Act, seeking custody of the subject children, and respondent-petitioner father filed a cross petition also seeking custody. Following a hearing, Family Court entered an order that, inter alia, awarded primary physical custody of the subject children to the father and visitation to the mother, and granted the mother secondary decision-making authority with regard to the health, education, and welfare of the children.

We reject the mother's contention that the court did not give proper consideration to her allegations of domestic violence. The record supports the court's determination that the mother's alleged instances of domestic violence by the father, and any alleged negative impact upon the children thereby, were not proved by a preponderance of the evidence (see Miller v. Jantzi, 118 A.D.3d 1363, 1363–1364, 987 N.Y.S.2d 745 ; Williams v. Williams, 78 A.D.3d 1256, 1257, 911 N.Y.S.2d 209 ; see also Matter of Booth v. Booth, 8 A.D.3d 1104, 1105, 778 N.Y.S.2d 643, lv. denied 3 N.Y.3d 607, 785 N.Y.S.2d 25, 818 N.E.2d 667 ). The court's “first-hand assessment of the credibility of the witnesses after an evidentiary hearing ... is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record” (Matter of Dubuque v. Bremiller, 79 A.D.3d 1743, 1744, 913 N.Y.S.2d 855 ). Here, we see no basis to disturb the court's credibility determinations.

We reject the mother's further contention that the court erred in granting primary physical custody to the father because he had, in effect, delegated his responsibility to care for the children to the paternal grandmother owing to his work schedule. While it is true that “ ‘[c]ustody options which allow for the direct care and guidance of children by a parent rather than by third parties are naturally preferred’ ” (Crowe v. Crowe [Appeal No. 2], 176 A.D.2d 1216, 1216–1217, 576 N.Y.S.2d 973, lv. denied 79 N.Y.2d 755, 581 N.Y.S.2d 665, 590 N.E.2d 250 ), that is but one factor in the overall analysis, and a more fit parent will not be deprived of custody simply because the parent assigns day-care responsibilities to a relative owing to work obligations (see Matter of Wellman v. Dutch, 198 A.D.2d 791, 792, 604 N.Y.S.2d 381, appeal dismissed 82 N.Y.2d 920, 610 N.Y.S.2d 155, 632 N.E.2d 465 ). Here, the record supports the court's determination that the father “ha [d] assumed greater responsibility for the children's care” since the separation of the parties (see generally Matter of McGrew v. Chase, 193 A.D.2d 1119, 1120, 598 N.Y.S.2d 644 ), and that the children emotionally benefitted from the care they had received from the paternal grandmother and step-grandfather (see Matter of Oravec v. Oravec, 89 A.D.3d 1475,...