In the Matter of April E. Lynch v. Douglas N. Gillogly Jr.

• Decision Date: 31 March 2011
• Citation: 82 A.D.3d 1529,2011 N.Y. Slip Op. 02502,920 N.Y.S.2d 437
• Parties: In the Matter of April E. LYNCH, Respondent,v.Douglas N. GILLOGLY Jr., Appellant.(And Another Related Proceeding.)
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 1529

920 N.Y.S.2d 437

2011 N.Y. Slip Op. 02502

In the Matter of April E. LYNCH, Respondent,

v.Douglas N. GILLOGLY Jr., Appellant.(And Another Related Proceeding.)

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

March 31, 2011.

William E. Betz, Great Neck, for appellant.Susan C. Kirby, Ithaca, for respondent.Lenore M. LeFevre, Cortland, attorney for the child.Before: SPAIN, J.P., LAHTINEN, GARRY and EGAN JR., JJ.SPAIN, J.P.

Appeal from an order of the Family Court of Tompkins County (Rowley, J.), entered January 6, 2010, which granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 6, for custody of the parties' child.

The parties, the unwed parents of a daughter (born in 2006), became involved in a romantic relationship while respondent (hereinafter the father), a resident of Tompkins County, was living out of town and working on a construction project in the Village of Dolgeville, Herkimer County. At that time, the father was also involved in a live-in relationship with a woman in the Village of Freeville, Tompkins County; petitioner (hereinafter the mother) was aware of that relationship. In early 2002, when the construction project was almost completed, the father—in order to continue to pursue his relationship with the mother—persuaded her to move with her two older daughters (born in 1994 and 1998) to Freeville, promising to provide them with a home and financial assistance. He bought her a house and supported her and her children both emotionally and financially, regularly staying at their home while continuing to also reside with his live-in companion who he led to believe that he was out of town on business during his absences. Between 2002 and 2006, the father was supporting both the home of the mother, with whom he continued his romantic relationship, and that of his live-in companion, who he married after she became pregnant with their son (born in 2005). The mother became pregnant with the subject child in 2006 and, soon after her birth, the mother and father's relationship became strained. In 2009, the mother commenced the instant proceeding seeking joint custody and physical placement of the child with her and permission to return to Dolgeville with the child, 2 1/2 hours away. The father thereafter cross-petitioned for sole custody and the mother subsequently amended her petition, requesting sole custody. Following a fact-finding hearing, Family Court granted the mother sole custody and approved her relocation; the father was granted specific liberal parenting time, including alternate weekends, three-day weekends when the child is not in school and alternating full weeks during the summer. The father now appeals.

Family Court properly granted sole custody to the mother and permitted her requested relocation. In making an initial custody determination, the overriding priority is the best interests of the child ( see Matter of Schneider v. Lascher, 72 A.D.3d 1417, 1418, 899 N.Y.S.2d 479 [2010], lv. denied 15 N.Y.3d 708, 909 N.Y.S.2d 23, 935 N.E.2d 815 [2010]; Matter of Richardson v. Alling, 69 A.D.3d 1062, 1063, 892 N.Y.S.2d 673 [2010] ). In undertaking this best interests analysis, “Family Court was required to consider various factors, including how the decision would impact on the child['s] stability, the home environment of both parents, each parent's willingness to foster a relationship with the other parent, their past performance and ability to provide for the [child's] overall well-being” ( Matter of White v. White, 77 A.D.3d 1073, 1074, 909 N.Y.S.2d 220 [2010] [internal quotation marks and citations omitted]; see Matter of Clupper v. Clupper, 56 A.D.3d 1064, 1065–1066, 869 N.Y.S.2d 253 [2008] ). In addition to this nonexhaustive list, all other relevant factors must be considered ( see Matter of Troy SS. v. Judy UU., 69 A.D.3d 1128, 1131, 894 N.Y.S.2d 186 [2010], lv. denied 14 N.Y.3d 912, 904 N.Y.S.2d 690, 930 N.E.2d 764 [2010]; Matter of Solomon v. Long, 68 A.D.3d 1467, 1468, 891 N.Y.S.2d 528 [2009] ), including a parent's decision to relocate ( see Malcolm v. Jurow–Malcolm, 63 A.D.3d 1254, 1255–1256, 879 N.Y.S.2d 834 [2009] ) and the effect an award of custody would have on the child's relationship with the noncustodial parent ( see Matter of Lukaszewicz v. Lukaszewicz, 256 A.D.2d 1031, 1033, 682 N.Y.S.2d 696 [1998] ). As this is an initial custody determination, it is not necessary to adhere to a strict application of the relevant factors to be considered in a potential relocation as enunciated in Matter of Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575, 665 N.E.2d 145 [1996]; see Ostrander v. McCain, 68 A.D.3d 1480, 1481, 891 N.Y.S.2d 544 [2009]; Furman v. Furman, 298 A.D.2d 627, 628–629, 748 N.Y.S.2d 190 [2002], lv. dismissed and denied 99 N.Y.2d 575, 755 N.Y.S.2d 708, 785 N.E.2d 730 [2003] ), and Family Court's determination should be accorded deference unless it lacks a sound and substantial basis in the record ( see Matter of Burdick v. Babcock, 59 A.D.3d 826, 827, 875 N.Y.S.2d 277 [2009]; Matter of De Losh v. De Losh, 235 A.D.2d 851, 853, 652 N.Y.S.2d 821 [1997], lv. denied 89 N.Y.2d 813, 658 N.Y.S.2d 243, 680 N.E.2d 617 [1997] ).

Here, the mother has always been the subject child's primary caregiver, and the child has always lived with her mother and older sisters, with the father coming and going between his two households. However, the record indicates that the mother has a history of alcohol abuse and alcohol-related driving convictions, the second of which was a conviction for driving while intoxicated that occurred after the child was born.¹ There is also some evidence that the mother may suffer from bouts of untreated depression. The record also shows that the father, after his relationship with the mother ended, greatly reduced his financial support, began secretly tape-recording his interactions with the mother as potential evidence against her, and continued to do so even after his attorney advised him to stop. Moreover, the father admitted to grossly deceiving his wife for...