Shirreece AA. v. Matthew BB.

195 A.D.3d 1085

149 N.Y.S.3d 657

In the Matter of SHIRREECE AA., Appellant,

v.MATTHEW BB., Respondent.

529665

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

Calendar Date: April 22, 2021

Decided and Entered: June 3, 2021

Noreen McCarthy, Keene Valley, for appellant.

Lisa A. Burgess, Indian Lake, for respondent.

Nicole R. Rodgers, Saratoga Springs, attorney for the child.

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

MEMORANDUM AND ORDER

Garry, P.J.

Appeal from an order of the Family Court of Essex County (Wait, J.), entered July 3, 2019, which dismissed 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 parents of a child (born in 2011). After the parties separated in 2013, they informally agreed to share physical custody of the child on an alternating three-day schedule. In 2016, the mother filed a petition seeking primary custody. The father opposed the petition and requested that he be granted custody of the child. In November 2016, Family Court (Meyer, J.) issued a temporary order directing that the child continue attending school in the father's school district, granting the father physical custody of the child during the week and providing the mother parenting time on weekends. After a January 2017 fact-finding hearing, Family Court issued a June 2017 order granting joint custody to the parties, primary physical custody to the father and parenting time to the mother. In November 2018, this Court reversed Family Court's decision and remitted for further proceedings ( 166 A.D.3d 1419, 1425, 89 N.Y.S.3d 384 [2018] ).

On remittal, Family Court (Wait, J.) issued a January 2019 temporary order that continued joint legal custody and primary physical custody to the father, but increased the mother's parenting time to every weekend and removed certain restrictions. Following a second fact-finding hearing in February 2019, which incorporated the evidence from the first hearing, the court granted primary custody to the father and parenting time to the mother on all but one weekend per month. The mother appeals.

In custody proceedings, "Family Court has broad discretion to determine the scope of discovery and proof to be adduced at the fact-finding hearing" ( Matter of Karen Q. v. Christina R., 184 A.D.3d 987, 989, 126 N.Y.S.3d 214 [2020] ; see Seale v. Seale, 149 A.D.3d 1164, 1165, 51 N.Y.S.3d 647 [2017] ; Matter of Ryan v. Nolan, 134 A.D.3d 1259, 1262, 21 N.Y.S.3d 469 [2015] ). Family Court did not err in denying the portion of the mother's motion seeking to depose the father prior to the second hearing, as she had already had the opportunity to question him at the first hearing. Nor did the court abuse its discretion in denying the portion of the motion seeking to compel the father to disclose his treatment records, as the mother had the opportunity to question the father about his treatment at the second hearing and she could seek a negative inference based on his failure to proffer such records himself (compare Matter of Martin v. Martin, 46 A.D.3d 1243, 1246–1247, 848 N.Y.S.2d 433 [2007] ). Family Court offered the mother the option of new assigned counsel, in accordance with this Court's previous suggestion ( 166 A.D.3d at 1425, 89 N.Y.S.3d 384 ), but she chose not to accept that offer. Further, the court did not abuse its discretion in ruling that an encounter between the father and the mother's counsel in the courthouse waiting room was irrelevant. We therefore reject the assertion that Family Court deprived the mother of due process.

Because Family Court ruled that the encounter in the waiting room was irrelevant, the mother was not prejudiced by her counsel not recusing himself to become a witness regarding that encounter. The mother also attacks counsel's failure to obtain the father's treatment records, but counsel cross-examined the father about his alleged treatment and, as noted above, could rely upon the father's failure to produce the records on his own behalf. Hence, the mother was not denied the effective assistance of counsel.

Turning to the merits, "[i]n an initial custody proceeding, Family Court's paramount consideration is to determine the custodial arrangement that would promote the best interests of the child" ( Matter of Damian R. v. Lydia S., 182 A.D.3d 650, 651, 122 N.Y.S.3d 395 [2020] ). "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. 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" ( Matter of Patricia RR. v. Daniel SS., 172 A.D.3d 1471, 1472, 99 N.Y.S.3d 489 [2019] [internal quotation marks and citations omitted]).

The mother has steady employment and lives with her boyfriend, their daughter – the child's half sister – and one of the boyfriend's children. The boyfriend has five other children, some of whom visit on weekends. At the time of the first hearing, the child had his own bedroom at the mother's home. By the second hearing, that room had been given to another child who had moved into the mother's home, so the child did not have his own bedroom or bed, and generally slept on a couch. Although the mother testified that she plans to buy a trundle bed to put in the daughter's room when she gains primary custody of the child, she failed to indicate why she was waiting to obtain a bed during this period while the child has been spending every weekend at her home. Further, as noted by Family Court, that proposed room-sharing arrangement is questionable when considering the child's sometimes aggressive and inappropriate conduct toward girls.

Although the mother generally takes good care of the child, several issues revealed within her testimony present grounds for concern. For example, she testified that she "warned" the six-year-old child about watching an R-rated scary movie and told him that she preferred he not watch it, but that she allowed him to watch the movie because "he wanted to watch it anyways." She also testified about times when she tried to put the child in "time out" for punishment but after "maybe five seconds ... he'll just take off," and that he engaged in some troubling behavior at her home, such as swearing, talking about his genitalia, pulling down his pants in front of other children and rubbing his bare butt against people. Although the mother believes that the child must have learned to swear from the father, as she and her boyfriend do not swear in front of the children, the record reveals other possible modeling for this conduct; the boyfriend testified that his older children may sometimes swear in the house and the mother admittedly allows the child to watch R-rated movies.

Despite the June 2017 order providing the mother with parenting time every Wednesday afternoon, she only exercised that time twice. She asserted that she had to work late on Wednesdays, but she did not ask to substitute another day. She further testified that she was unaware that the order permitted her to have the child for two full weeks each summer, as she did not carefully read the order. The mother acknowledged that the father handled the child's medical and dental appointments, and she was satisfied with the father's communication regarding the child's health.

Although the father had previously unilaterally enrolled the child in a prekindergarten program in the school district where he lives, it bears noting that the parties had been discussing the school situation for months and had not reached any agreement. The mother had wanted the child to remain in her school district, although that district did not offer a prekindergarten program. After the child was enrolled in the father's district, the mother did not transport the child to school when he was in her care; this led to the first temporary order placing the child in the father's care during the week. The school sent the mother report cards and behavior referrals.¹ The school considered the father to be the primary parent and dealt mainly with him, but the mother's efforts to be involved appear less than rigorous, despite her testimony that she repeatedly fought to get information from the school for years. For example, she emailed the principal just once, a few weeks before the second hearing, to request a conference, but then failed to follow through after the principal responded affirmatively to her request. The mother testified that the teacher was never in the classroom when she stopped by, but her attempts to make contact appear severely limited.

The mother was responsible for the termination of therapy by the child's first counselor. The father researched other counselors, informed the mother about them and, with her agreement, enrolled the child in therapy, at the father's expense. The mother testified that she believed that the child's behavior improved in the two months preceding the hearing due to him spending more time with her, whereas the father and the teacher attributed the improvement in behavior to the counseling and a behavioral improvement plan created by the school psychologist, the teacher and the father. The teacher testified that the child's behavior was...