Patricia RR. v. Daniel SS.

172 A.D.3d 1471

99 N.Y.S.3d 489

In the Matter of PATRICIA RR., Appellant,

v.DANIEL SS., Respondent.

(And Another Related Proceeding.)

526120

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

Calendar Date: March 25, 2019

Decided and Entered: May 2, 2019

William V. O'Leary, Albany, for appellant.

Aaron A. Louridas, Delmar, for respondent.

Sandra M. Colatosti, Albany, attorney for child.

Before: Egan Jr., J.P., Lynch, Clark, Mulvey and Devine, JJ.

MEMORANDUM AND ORDER

Devine, J.Appeal from an order of the Family Court of Albany County (Kushner, J.), entered December 5, 2017, which, among other things, granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, for custody of the parties' child.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the unwed parents of a child (born in 2016). The mother petitioned for custody a few months after the child's birth, then the father did so. The parties could not agree on a permanent custody and visitation scheme, and the petitions proceeded to a fact-finding hearing. Family Court thereafter issued a decision and implementing order that, among other things, awarded the parties joint legal and shared physical custody of the child, specified a schedule for parenting time and directed the parties to engage in co-parenting counseling. The mother appeals, and we now affirm.

In rendering an initial custody determination, Family Court gauges the best interests of the child (see Eschbach v. Eschbach , 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ; Matter of Lorimer v. Lorimer , 167 A.D.3d 1263, 1264, 91 N.Y.S.3d 286 [2018] ; Matter of Shirreece AA. v. Matthew BB. , 166 A.D.3d 1419, 1421, 89 N.Y.S.3d 384 [2018] ). The best interests analysis involves " a variety of factors, including the quality of the parents' respective home environments, the need for stability in the child's life, each parent's willingness to promote a positive relationship between the child and the other parent and each parent's past performance, relative fitness and ability to provide for the child's intellectual and emotional development and overall well-being" ( Matter of Shirreece AA. v. Matthew BB. , 166 A.D.3d at 1421, 89 N.Y.S.3d 384 ; see Matter of Lorimer v. Lorimer , 167 A.D.3d at 1264, 91 N.Y.S.3d 286 ). Inasmuch as Family Court is in a superior position to evaluate witness credibility, we defer to its factual findings and only assess whether its determination is supported by a sound and substantial basis in the record (see Matter of Lorimer v. Lorimer , 167 A.D.3d at 1264, 91 N.Y.S.3d 286 ; Matter of Shirreece AA. v. Matthew BB. , 166 A.D.3d at 1421, 89 N.Y.S.3d 384 ; Matter of Paluba v. Paluba , 152 A.D.3d 887, 889, 58 N.Y.S.3d 719 [2017] ).

To the extent that the mother now challenges the award of joint legal custody, the parties have had disagreements and conflicts, but are willing to communicate and engage in counseling to improve that communication, and we defer to Family Court's assessment that their relationship is not so acrimonious as to render the award unworkable (see Ehrenreich v. Lynk , 74 A.D.3d 1387, 1388–1389, 903 N.Y.S.2d 549 [2010] ; Webster v. Webster , 283 A.D.2d 732, 734–735, 725 N.Y.S.2d 109 [2001] ). As for the award of shared physical custody, the child was primarily cared for by the mother during the pendency of these proceedings, with the father also involved to a significant degree. No concerns were raised with regard to the living arrangements of either parent. Family Court further concluded that both parents were fit and, in so doing, implicitly determined that the mother's concerns about the father were overstated. For example, the father expressed skepticism as to some aspects of the child's medical care, but he was also actively involved in that care, discussed...