Pierre v. Dal

142 A.D.3d 1021

37 N.Y.S.3d 317

2016 N.Y. Slip Op. 06002

In the Matter of Nadege PIERRE, appellant,

v.Ousmane DAL, respondent. (Proceeding Nos. 1 and 2)

In the Matter of Ousmane Dal, respondent,

v.Nadege Pierre, appellant. (Proceeding Nos. 3 and 4).

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

Sept. 14, 2016.

Heather A. Fig, Bayport, N.Y., for appellant.

Darla A. Filiberto, Hauppauge, N.Y., for respondent.

Laurette Mulry, Central Islip, N.Y. (John B. Belmonte of counsel), attorney for the child.

CHERYL E. CHAMBERS, J.P., THOMAS A. DICKERSON, COLLEEN D. DUFFY, and VALERIE BRATHWAITE NELSON, JJ.

Appeals by the mother from two orders of the Family Court, Suffolk County (Martha L. Luft, J.), both dated August 14, 2014, and an order of protection of that court, also dated August 14, 2014. The first order, insofar as appealed from, after a hearing, inter alia, granted the father's petition for sole legal and physical custody of the parties' child, with visitation to the mother, in effect, denied the mother's petition for sole custody of the subject child, found that the mother committed the family offense of harassment in the second degree, and granted the father's family offense petition. The second order dismissed the mother's family offense petition and vacated all temporary orders of protection issued against the father in connection with the mother's family offense petition. The order of protection imposed certain conditions upon the mother until and including February 14, 2015.

ORDERED that the first order dated August 14, 2014, is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the second order dated August 14, 2014, and the order of protection are affirmed, without costs or disbursements.

The parties have one child in common, who was born in 2012. In August 2013, the mother and the father each filed family offense petitions against the other; each petition alleged, among other things, each party's respective version of an incident that occurred that month. In that same month, the father filed a petition seeking custody of the child. In September 2013, the mother also filed a petition seeking custody of the child. Temporary orders of protection were issued on behalf of each party in connection with the family offense petitions, a temporary order of custody and visitation was issued with respect to the custody petitions, and the Family Court subsequently held a hearing on all four petitions.

Thereafter, the Family Court, in two orders, each dated August 14, 2014, inter alia, (1) granted the father's petition for sole legal and physical custody of the child and awarded visitation to the mother, and, in effect, denied the mother's petition for sole custody; and (2) found that the mother committed the family offense of harassment in the second degree, dismissed the mother's family offense petition, granted the father's family offense petition, and vacated any temporary orders of protection that had been issued against the father in connection with the mother's family offense petition. The Family Court also issued an order of protection against the mother, dated August 14, 2014. The mother appeals, as limited by her brief.

Initially, although the order of protection issued by the Family Court in connection with the father's family offense petition expired by its own terms on February 14, 2015, the appeal has not been rendered academic “given the totality of the enduring legal and reputational consequences of the contested order of protection” (Matter of Veronica P. v. Radcliff A., 24 N.Y.3d 668, 673, 3 N.Y.S.3d 288, 26 N.E.3d 1143 ; Matter of Parameswar v. Parameswar, 109 A.D.3d 473, 474, 970 N.Y.S.2d 793 ).

In making an initial custody or visitation determination, the court must consider what arrangement is in the best interests of the child under the totality of the circumstances (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Saravia v. Godzieba, 120 A.D.3d 821, 821, 991 N.Y.S.2d 476 ; Matter of Jules v. Corriette, 76 A.D.3d 1016, 1017, 908 N.Y.S.2d 89 ). “Factors to be considered include the quality of the home environment and parental guidance, the ability of each parent to provide for the child's emotional and intellectual development, and the financial status and ability of each parent to provide for the child” (Matter of Andrews v. Mouzon, 80 A.D.3d 761, 762, 915 N.Y.S.2d 604 ). The relative fitness of each parent, as well as the effect an award of custody to one parent might have on the child's relationship with the other parent also should be considered (see Matter of Ivory B. v. Shameccka D.B., 121 A.D.3d 674, 674–675, 993 N.Y.S.2d 173 ). “[W]illful interference with a noncustodial parent's right to visitation is so inconsistent with the best interests of the children as to, per se, raise a strong probability that the [offending party] is unfit to act as a custodial parent” (Matter of Joosten v. Joosten, 282 A.D.2d 748, 748, 724 N.Y.S.2d 335 [internal quotation marks omitted], quoting Matter of Glenn v. Glenn, 262 A.D.2d 885, 887, 692 N.Y.S.2d 520 ).

Since custody and visitation determinations “necessarily depend ... to a great extent upon an assessment of the character and credibility of the parties and witnesses,” such determinations “should not be set aside unless they lack a sound and substantial basis in the record” (Matter of Diaz v. Garcia, 119 A.D.3d 682, 683, 988 N.Y.S.2d 899, quoting Matter of Elliott v. Felder, 69 A.D.3d 623, 623, 892 N.Y.S.2d 491 [citation omitted] ).

Here, contrary to the mother's contentions, the Family Court's determination as to the best interests of the child with respect to custody and visitation, made after a hearing at which the court heard testimony from a number of witnesses, including the parties, has a sound and substantial basis in the record and, accordingly, will not be disturbed (see Matter of Alleyne v. Cochran, 119 A.D.3d 1100, 1101, 990 N.Y.S.2d 289 ; Matter of DeViteri v. Saldana, 95 A.D.3d 1221, 1222, 944 N.Y.S.2d 635 ; Matter of Gast v. Gast, 50 A.D.3d 1189, 1190, 855 N.Y.S.2d 696 ).

“The determination of whether a family offense was committed is a...