Wojciulewicz v. McCauley, 952

• Decision Date: 09 November 2018
• Docket Number: CAF 17–00500,952
• Citation: 166 A.D.3d 1489,87 N.Y.S.3d 422
• Parties: In the Matter of Malgorzata Elzbieta WOJCIULEWICZ, Petitioner–Respondent, v. Shawn MCCAULEY, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 1489

87 N.Y.S.3d 422

In the Matter of Malgorzata Elzbieta WOJCIULEWICZ, Petitioner–Respondent,

v.Shawn MCCAULEY, Respondent–Appellant.

952

CAF 17–00500

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

Entered: November 9, 2018

D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF COUNSEL), FOR RESPONDENT–APPELLANT.

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR PETITIONER–RESPONDENT.

ANDREW S. GREENBERG, SYRACUSE, ATTORNEY FOR THE CHILD.

TIMOTHY A. ROULAN, SYRACUSE, ATTORNEY FOR THE CHILDREN.

PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this proceeding pursuant to Family Court Act article 6, respondent father appeals from an order that, inter alia, awarded petitioner mother primary legal and physical custody of the three subject children with specified visitation to the father. Although we agree with the father that Family Court failed to set forth the "facts it deem[ed] essential" for its custody determination ( CPLR 4213[b] ; see Matter of Graci v. Graci , 187 A.D.2d 970, 971, 590 N.Y.S.2d 377 [4th Dept. 1992] ), the record is sufficient for us to make our own factual findings "in the interests of judicial economy and the well-being of the child[ren]" ( Matter of Brandon v. King , 137 A.D.3d 1727, 1727–1728, 28 N.Y.S.3d 757 [4th Dept. 2016] ; see generally Matter of Howell v. Lovell , 103 A.D.3d 1229, 1231, 960 N.Y.S.2d 278 [4th Dept. 2013] ; Matter of Bryan K.B. v. Destiny S.B. , 43 A.D.3d 1448, 1450, 844 N.Y.S.2d 535 [4th Dept. 2007] ).

We conclude that the court's determination is supported by a sound and substantial basis in the record (see generally Matter of Burns v. Herrod , 132 A.D.3d 1336, 1336, 17 N.Y.S.3d 526 [4th Dept. 2015] ). In making a custody determination, "numerous factors are to be considered, including the continuity and stability of the existing custodial arrangement, the quality of the child's home environment and that of the parent seeking custody, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, and the individual needs and expressed desires of the child" ( Matter of Caughill v. Caughill , 124 A.D.3d 1345, 1346, 1 N.Y.S.3d 652 [4th Dept. 2015] [internal quotation marks omitted]; see Bryan K.B. , 43 A.D.3d at 1450, 844 N.Y.S.2d 535 ).

Here, while the parties lived together, the mother was the primary caretaker and means of emotional and financial support for the children. After the parties separated, the father began to play a larger role in the children's lives. The mother has been a victim of domestic violence, first with the father when they resided together, and then with an abusive live-in boyfriend with whom she had other children. The mother ended the relationship with that boyfriend after she determined that the relationship was not in the best interests of either herself or the children, and she now lives in a three-bedroom townhouse with the children. The father has made attempts to improve the quality of the children's home environment in the long term by attending college and working part-time, which required enrolling the children in an after-school program and reducing the amount of time that he could spend at home with the children. The father has resided in the same home and school district for twelve years. Thus, both parents have worked to overcome challenges in providing stable home environments for the children.

Although each parent is now able to offer a stable home environment for the children, we conclude that the mother is better suited to provide for the children's emotional development inasmuch as the record establishes that she has a history of looking after their emotional needs, and she demonstrated a commitment to addressing their mental health by enrolling them in therapy. Both parents are supportive of the children's intellectual development and are dedicated to involvement in their schooling, and both parents are on equal footing financially, supplementing work income with public assistance.

There are two critical factors that weigh in favor of the mother: the father's use of excessive punishment, including excessive corporal punishment, and his failure to foster the children's relationship with the mother. The record reflects multiple instances of excessive punishment from the father, the most serious of which involved striking one of the children multiple times with...