In the Matter of Ariane I. v. David I.

• Decision Date: 31 March 2011
• Citation: 2011 N.Y. Slip Op. 02509,82 A.D.3d 1547,919 N.Y.S.2d 252
• Parties: In the Matter of ARIANE I., Appellant,v.DAVID I., Respondent.(And Two Other Related Proceedings.).
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 1547

919 N.Y.S.2d 252

2011 N.Y. Slip Op. 02509

In the Matter of ARIANE I., Appellant,

v.DAVID I., Respondent.(And Two Other Related Proceedings.).

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

March 31, 2011.

Sandra M. Colatosti, Albany, for appellant.Catherine E. Stuckart, Binghamton, for respondent.Mark Loughran, Binghamton, attorney for the children.Before: MERCURE, J.P., ROSE, McCARTHY and EGAN JR., JJ.ROSE, J.

Appeal from an order of the Family Court of Broome County (Connerton, J.), entered May 24, 2010, which, in three proceedings pursuant to Family Ct. Act article 6, among other things, partially granted respondent's application for custody of the subject children.

Ariane I. (hereinafter the mother) and David I. (hereinafter the father) are the married parents of two sons (born in 2005 and 2007). The mother left the marital residence in August 2009 with the children and obtained a temporary order of protection against the father, which also provided for the father's visitation with the children at least three times a week, to be arranged by the mother and paternal grandmother (hereinafter the grandmother). The mother also filed family offense and custody petitions and then moved with the children to Texas without the father's consent. The father then filed a petition for custody and the grandmother filed a separate petition that ultimately sought visitation. Prior to the April 2010 hearing on these matters, all of the mother's petitions were dismissed, except for one custody petition. When the mother failed to appear at the April hearing, her petition was dismissed without prejudice. The mother's counsel was present, however, and he participated in the hearings on the father's and grandmother's petitions. Family Court ordered that the children be returned to Broome County, awarded joint custody with shared custodial periods and granted visitation to the grandmother. The mother appeals.

Initially, we note that the mother's appeal from the dismissal of her custody petition must be dismissed as no appeal lies from an order on default ( see CPLR 5511; Matter of Anesi v. Brennan, 75 A.D.3d 791, 792–793, 906 N.Y.S.2d 124 [2010] ).¹ The mother's contention that she should not have been found in default and, instead, that she should have been granted an adjournment is without merit as no reasonable excuse was proffered for her nonappearance ( see Matter of Scott v. Jenkins, 62 A.D.3d 1053, 1054, 880 N.Y.S.2d 361 [2009], lv. denied 13 N.Y.3d 705, 887 N.Y.S.2d 2, 915 N.E.2d 1180 [2009]; Matter of Hill v. Hillenbrand, 12 A.D.3d 980, 981, 785 N.Y.S.2d 555 [2004], lv. denied 4 N.Y.3d 705, 792 N.Y.S.2d 898, 825 N.E.2d 1093 [2005] ). Family Court's determination that the mother's alleged financial inability to appear was caused by her voluntary removal of the children to a distant locale without first obtaining the permission of the court will not be disturbed.

In making any custody determination, the primary concern is the best interests of the children ( see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982]; Matter of Melissa K. v. Brian K., 72 A.D.3d 1129, 1131, 898 N.Y.S.2d 318 [2010] ). Here, the record reveals that the mother was the primary caregiver but that the father had a close bond with the children. The children also had almost daily contact with the father's parents until the mother moved them to Texas to live with her parents, with whom the children had no prior relationship. Given the circumstances, Family Court's determination that it was in the best interests of the children to award joint custody and to direct that the children reside in Broome County has a sound and substantial basis in the record ( see Matter of Streid v. Streid, 46 A.D.3d 1155, 1157, 847 N.Y.S.2d 760 [2007]; Matter of Meres v. Botsch, 260 A.D.2d 757, 759, 687 N.Y.S.2d 799 [1999] ).

The mother does not contest the award of visitation to the grandmother. Instead, she contends that Family Court should have directed that the visitation time be taken from, and occur during, the father's custodial periods. Based on our review of the record and the...