Darrow v. Darrow

• Decision Date: 30 May 2013
• Citation: 2013 N.Y. Slip Op. 03885,965 N.Y.S.2d 673,106 A.D.3d 1388
• Parties: In the Matter of William I. DARROW, Respondent, v. Amber L. DARROW, Appellant. (Proceeding No. 1.) In the Matter of Kim M. Hibbard, Respondent, v. Amber Darrow, Appellant, et al., Respondent. (Proceeding No. 2.) (And Another Related Proceeding.)
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 1388
965 N.Y.S.2d 673
2013 N.Y. Slip Op. 03885

In the Matter of William I. DARROW, Respondent,
v.
Amber L. DARROW, Appellant. (Proceeding No. 1.)
In the Matter of Kim M. Hibbard, Respondent,
v.
Amber Darrow, Appellant, et al., Respondent. (Proceeding No. 2.)
(And Another Related Proceeding.)

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

May 30, 2013.

[965 N.Y.S.2d 675]

Teresa C. Mulliken, Harpersfield, for appellant.

Petrick & Kapur, Endicott (David E. Kapur of counsel), for William I. Darrow, respondent.

Richard J. Grace, Binghamton, for Kim M. Hibbard, respondent.

Judith E. Osburn, Binghamton, attorney for the children.

Before: LAHTINEN, J.P., STEIN, McCARTHY and EGAN JR., JJ.

EGAN JR., J.

[106 A.D.3d 1389]Appeals from two decisions and two orders of the Family Court of Broome County (Pines, J.), entered November 22, 2011, which, among other things, granted petitioners' applications, in proceeding Nos. 1 and 2 pursuant to Family Ct. Act article 6, for custody of the subject children.

Respondent Amber L. Darrow (hereinafter the mother) is the mother of three children—Nathaniel (born in 1998), Christian (born in 2001) and Gianna (born in 2005). Petitioner William I. Darrow (hereinafter Darrow), whom the mother married in 2006, is the father of Nathaniel and Gianna. Respondent Matthew J. Hibbard (hereinafter Hibbard) is the father of Christian, and petitioner Kim M. Hibbard (hereinafter the grandmother) is Christian's paternal grandmother. The mother and Darrow lived together with all three children until early 2010 when, in response to the mother's alleged infidelity, Darrow asked her to leave the marital residence.

The parties appear to have enjoyed a reasonably amicable relationship until late August 2010, when the Broome County Department of Social Services (hereinafter DSS) advised the mother that she was the subject of a report of suspected child abuse or maltreatment. In response, Darrow commenced proceeding No. 1 seeking custody of Nathaniel and Gianna, and Family Court (Connerton, J.) temporarily awarded the mother and Darrow joint legal custody of the children with primary physical custody to Darrow.¹ Additionally, the grandmother commenced proceeding No. 2 seeking custody of Christian, and Family Court (Brockway, J.) granted her temporary custody of the child with supervised visitation to the mother and visitation to Hibbard as outlined in a June 2004 order.² Shortly thereafter, Hibbard commenced proceeding No. 3 seeking sole custody of Christian. Approximately nine months later, Hibbard amended his petition and requested that he and the grandmother be granted joint custody. In the interim, DSS advised Family Court that the report against the mother would be indicated for inadequate guardianship. ³

Following separate fact-finding and Lincoln hearings, Family [106 A.D.3d 1390]Court awarded sole legal and physical custody of Nathaniel and Gianna to Darrow and weekend visitation to the mother. As to Christian, Family Court found that extraordinary circumstances existed and awarded the grandmother and Hibbard joint legal custody of the child with primary physical

[965 N.Y.S.2d 676]

custody to the grandmother and weekend visitation to the mother.⁴ These appeals by the mother ensued.⁵

We turn first to Family Court's decision to award sole custody of Nathaniel and Gianna to Darrow. The primary concern in any custody matter is, of course, the best interests of the children and, to that end, Family Court must give due consideration to, among other things, “each parent's ability to furnish and maintain a suitable and stable home environment for the child[ren], past performance, relative fitness, ability to guide and provide for the child[ren]'s overall well-being and willingness to foster a positive relationship between the child[ren] and the other parent” (Matter of Melissa WW. v. Conley XX., 88 A.D.3d 1199, 1200, 931 N.Y.S.2d 748 [2011],lv. denied18 N.Y.3d 803, 2012 WL 16993 [2012];see Matter of Ames v. Ames, 97 A.D.3d 914, 914–915, 947 N.Y.S.2d 836 [2012],lv. denied20 N.Y.3d 852, 2012 WL 5949777 [2012];Matter of Raynore v. Raynore, 92 A.D.3d 1167, 1168, 940 N.Y.S.2d 176 [2012] ). In view of Family Court's ability to observe the witnesses' testimony first hand, its credibility determinations—if supported by sound and substantial evidence in the record as a whole—will not be disturbed ( see Matter of Raynore v. Raynore, 92 A.D.3d at 1168, 940 N.Y.S.2d 176;Matter of Baker v. Baker, 82 A.D.3d 1462, 1462, 919 N.Y.S.2d 234 [2011] ).⁶

The mother initially contends that Nathaniel's and Gianna's interests would best be served by an award of joint custody. Although[106 A.D.3d 1391]an award of joint custody “is an aspirational goal in every custody matter” (matter of melissA ww. v. cOnley xx., 88 a.d.3D AT 1200, 931 N.y.s.2d 748 [internal quotation marks and citations omitted] ), such an award is not feasible where, as here, the parties' relationship and history evidences an inability to work and communicate with one another in a cooperative fashion ( see ...