James EE. v. Vanessa EE.

213 N.Y.S.3d 480

228 A.D.3d 1025

In the Matter of JAMES EE., Appellant,

v.VANESSA EE., Respondent. (Proceeding No. 1.)

In the Matter of Vanessa EE., Respondent,

v.James EE., Appellant. (Proceeding No. 2.)

(And Two Other Related Proceedings.)

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

Calendar Date: April 29, 2024

Decided and Entered: June 6, 2024

Rural Law Center of New York, Inc., Plattsburgh (Lora J. Tryon of counsel), for appellant.

Lisa K. Miller, McGraw, for respondent.

Larisa Obolensky, Bovina Center, attorney for the children.

Before: Garry, P.J., Egan Jr., Clark, Lynch and Mackey, JJ.

MEMORANDUM AND ORDER

Clark, J.

Appeal from an order of the Family Court of Otsego County (John F. Lambert, J.), entered November 17, 2022, which, among other things, granted petitioner’s application, in proceeding No. 2 pursuant to Family Ct Act article 6, for custody of the parties’ children.

[1] James EE. (hereinafter the father) and Vanessa EE. (hereinafter the mother) are the parents of two children (born in 2016 and 2018). In July 2022, the father filed a petition seeking custody of the children, alleging that the mother’s substance abuse issues prevented her from properly caring for them. In August and September 2022, the mother filed her own petitions seeking custody of the children, denying the father’s allegations and alleging that the father was verbally and mentally abusive and had been denying her access to the children. Following a fact-finding hearing and a Lincoln hearing with the children, Family Court granted the mother sole legal and primary physical custody of the children, with the father having parenting time every other weekend. The father appeals.¹

[2–4] "In an initial custody determination, Family Court’s paramount consider- ation is the best interests of the children," which requires the consideration of factors such as "the quality of the parents’ respective home environments, the need for stability in the children’s lives, each parent’s willingness to promote a positive relationship between the children and the other parent and each parent’s past performance, relative fitness and ability to provide for the children’s intellectual and emotional development and overall well-being" (Matter of William Z. v. Kimberly Z., 212 A.D.3d 1036, 1037-1038, 182 N.Y.S.3d 343 [3d Dept. 2023] [internal quotation marks, brackets and citations omitted]; see Matter of Christopher L. v. Paula L., 212 A.D.3d 1060, 1061, 181 N.Y.S.3d 778 [3d Dept. 2023]). "Although joint legal custody is an aspirational goal in every custody matter, joint legal custody may not be feasible or appropriate in cases where the parents are unable to effectively and directly communicate with one another to care for the child[ren]’s needs" (Matter of Brenna EE. v. Andrew DD., 214 A.D.3d 1039, 1040, 184 N.Y.S.3d 448 [3d Dept. 2023] [internal quotation marks and citations omitted]; see Matter of Stephen G. v. Lara. H., 139 A.D.3d 1131, 1132, 31 N.Y.S.3d 266 [3d Dept. 2016], lv denied 27 N.Y.3d 1187, 38 N.Y.S.3d 95, 59 N.E.3d 1208 [2016]). "Family Court’s factual findings and credibility determinations are entitled to great deference and will not be disturbed if they have a sound and substantial basis in the record" (Matter of Brandon QQ. v. Shelby QQ., 216 A.D.3d 1212, 1213, 188 N.Y.S.3d 258 [3d Dept. 2023] [internal quotation marks and citations omitted]; see Matter of Darnell R. v. Katie Q., 195 A.D.3d 1083, 1084, 150 N.Y.S.3d 135 [3d Dept. 2021]).

Here, the parents resided together with the children and their maternal half sister until July 2022, when the mother and the half sister left the marital residence and moved in with the maternal grandparents; according to the mother, the father did not allow her to take the subject children with her. Family Court credited the mother’s testimony that the father subjected her to emotional and psychological abuse throughout the relationship, and that the children were sometimes present during that abuse. The court also found that, during the pendency of the proceedings, the father limited the mother’s contact with the children and spoke negatively about her to them. The parents’ ability to communicate with each other was severely hampered by the father’s demeanor. The father had also developed an antagonistic relationship with the children’s school officials, causing him to be banned from the premises of the younger child’s school. The father recognized that the younger child, who is autistic and nonverbal, needed physical, occupational and speech therapy, yet admitted that as of the October 25, 2022 hearing, the child had attended zero school days since that school year began.² The father also admitted that the older child had not been attending after-school speech therapy, explaining that the school was required to provide that service during school hours. The mother recognized the importance of these services for the children's development and, based on services that the half sister began receiving in her new school district, believed that the children would obtain the needed services if they relocated to her district. The mother was employed as a receptionist at a veterinarian’s office, and she testified that her employer agreed to modify her work schedule to allow her to be available for the children. The father was unemployed and received Social Security disability benefits.

[5, 6] In view of the foregoing, we disagree with the father’s contention that Family Court erred in awarding the mother sole legal and primary physical custody of the subject children. The record is clear that the parents are unable to communicate with each other. These difficulties are further augmented by the father’s unwillingness to facilitate the mother’s contact with the children and by his failure to prioritize the children’s educational and developmental well-being. Deferring to Family Court’s credibility determinations, we find that the award of sole legal custody to the mother is in the best interests of the...