Koch v. Koch

• Decision Date: 16 October 2014
• Docket Number: 516643.
• Citation: 2014 N.Y. Slip Op. 07026,121 A.D.3d 1201,993 N.Y.S.2d 794
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of David KOCH, Respondent, v. Lori–Ann KOCH, Appellant.

121 A.D.3d 1201

993 N.Y.S.2d 794

2014 N.Y. Slip Op. 07026

In the Matter of David KOCH, Respondent

v.Lori–Ann KOCH, Appellant.

516643.

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

Oct. 16, 2014.

Teresa C. Mulliken, Harpersfield, for appellant.

Andrew H. Van Buren, Hobart, for respondent.

Larisa Obolensky, Delhi, attorney for the child.

Before: LAHTINEN, J.P., ROSE, EGAN JR., LYNCH and CLARK, JJ.

Opinion

ROSE, J.

Appeal from an order of the Family Court of Delaware County (Becker, J.), entered March 29, 2013, which granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 6, for custody of the parties' child.

Petitioner (hereinafter the father) was required to leave the marital residence he shared with respondent (hereinafter the mother), their child (born in 2007) and two of the mother's three children from different relationships after an altercation with her teenage son. The father thereafter commenced this proceeding, seeking, among other things, sole custody of the parties' child. Family Court held a fact-finding hearing and awarded the father sole custody with scheduled visitation to the mother. The mother appeals.

When making an initial custody determination, a court's primary concern is “the best interest of the child, and what will best promote its welfare and happiness” (Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] [internal quotation marks and citation omitted]; see Matter of Alleyne v. Cochran, 119 A.D.3d 1100, 1100, 990 N.Y.S.2d 289 [2014] ; Matter of Keen v. Stephens, 114 A.D.3d 1029, 1030, 981 N.Y.S.2d 174 [2014] ). Among the factors to be considered are “maintaining stability for the child, the child's wishes, the home environment with each parent, each parent's past performance, relative fitness, ability to guide and provide for the child's overall well-being, and the willingness of each parent to foster a relationship with the other parent” (Matter of Smith v. Miller, 4 A.D.3d 697, 698, 772 N.Y.S.2d 742 [2004] ; accord Matter of Jolynn W. v. Vincent X., 85 A.D.3d 1217, 1217, 924 N.Y.S.2d 608 [2011], lv. denied 17 N.Y.3d 713, 2011 WL 4976934 [2011] ; see Matter of Keen v. Stephens, 114 A.D.3d at 1030, 981 N.Y.S.2d 174 ). We give due deference to Family Court's ability to observe the witnesses and assess their credibility, and we will not disturb its determination if it is supported by a sound and substantial basis in the record (see Matter of Alleyne v. Cochran, 119 A.D.3d at 1101, 990 N.Y.S.2d 289 ; Matter of Jarren S. v. Shaming T., 117 A.D.3d 1109, 1110, 984 N.Y.S.2d 484 [2014] ; Matter of Roberta GG. v. Leon HH., 99 A.D.3d 1057, 1059, 952 N.Y.S.2d 778 [2012] ).

The evidence here established that the father lives with his mother, has held a steady job for the past 17 years, and has a network of support to assist him in caring for the child while he is at work. The father's mother and sister testified as to the father's close relationship with the child and demonstrated ability to properly care for him, engage in activities with him and administer appropriate discipline. In contrast, the father expressed concern for the child's safety in the mother's care, mainly due to the mother's lack of supervision and failure to protect the child from her teenage son. The father, his mother and his sister also testified that the mother and her 27–year–old son were antagonistic toward them in front of the child during visitation exchanges, calling them vulgar names and driving recklessly. Although there were two indicated reports for physical violence against the father that occurred while the family was living together, he established that, since then, he had been regularly attending anger management counseling sessions and that there were no further incidents. The criminal charges filed against the father in connection with the altercation that resulted in him leaving the marital residence were dismissed, and the mother acknowledged that the father was never physically violent toward their child.

Family Court found the mother's testimony to be fabricated and discounted the testimony of two of her children that the father had regularly assaulted them. Both of the mother's children who testified had previously retracted such claims, and the mother admitted to having been convicted of forgery in the third degree for falsifying a document related to child support payments, claiming that she would “do it again for [her] kids.” Her daughter also admitted that she would lie in court to help her mother. Further, the mother had moved her children in with her 27–year–old son, yet she...