Koch v. Koch

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

?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.

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

Oct. 16, 2014

Affirmed.

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. 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

[993 N.Y.S.2d 795]

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...