Raynore v. Raynore

• Decision Date: 23 February 2012
• Citation: 92 A.D.3d 1167,940 N.Y.S.2d 176,2012 N.Y. Slip Op. 01396
• Parties: In the Matter of Robert RAYNORE, Appellant, v. Kaetlin RAYNORE, Respondent.(And Another Related Proceeding.)
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01396

92 A.D.3d 1167

940 N.Y.S.2d 176

In the Matter of Robert RAYNORE, Appellant,

v.Kaetlin RAYNORE, Respondent.(And Another Related Proceeding.)

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

Feb. 23, 2012.

Lawrence P. Brown, Bridgeport, for appellant.

Mark A. Schaeber, Liverpool, attorney for the child.

Before: PETERS, J.P., LAHTINEN, KAVANAGH, STEIN and GARRY, JJ.

KAVANAGH, J.

Appeal from an order of the Family Court of Madison County (McDermott, J.), entered April 6, 2011, which, among other things, granted respondent's cross application, in two proceedings pursuant to Family Ct. Act article 6, for custody of the parties' child.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of a child (born in 2007). After the parties had separated on numerous occasions, both filed petitions for custody of the child and, while these proceedings were pending, the father was granted temporary physical custody. Family Court, after a hearing, directed that the parties have joint legal custody of the child, with the mother having primary physical custody and the father having access to the child pursuant to an established visitation schedule. The father now appeals.

In making an initial determination of custody, Family Court's focus is on the child's best interests ( see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982]; Matter of Shearer v. Spisak, 90 A.D.3d 1346, 1347, 935 N.Y.S.2d 215 [2011] ), and the court must take into consideration “the parents' ability to provide a stable home environment for the child, the child's wishes, the parents' 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 Rundall v. Rundall, 86 A.D.3d 700, 701, 927 N.Y.S.2d 414 [2011]; see Hughes v. Gallup–Hughes, 90 A.D.3d 1087, 1089, 935 N.Y.S.2d 149 [2011] ). The court's determination will not be disturbed, given its opportunity “to observe the witnesses and assess their credibility, ... so long as it is supported by a sound and substantial basis in the record” ( Matter of Rundall v. Rundall, 86 A.D.3d at 701–702, 927 N.Y.S.2d 414). Here, Family Court concluded that it was in the child's best interests to live with the mother, even though the father had been the child's primary caretaker in the months leading up to the hearing and a close relationship obviously existed between them. The court's conclusion was based primarily on the father's history of drug abuse and the fact that, as recently as 2010, witnesses observed him using crack cocaine and he had tested positive for opiates. The court also noted that the father had failed to complete any counseling or treatment designed to address his use of illegal drugs, and he had a record of intermittent employment. Also, the father has a criminal history, which includes a charge that he stole a credit card from a prior employer, and he admitted to operating a motor vehicle with a suspended license. In contrast, the mother is gainfully employed and receives benefits, including health insurance for both her and the child. She resides with her father and, as Family Court found, has been...