State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 5, 2017 521214 

________________________________

MILTON JOHANN HERRERA,

Respondent,

v

MEMORANDUM AND ORDER

MADELENE YESSENIA 

PENA-HERRERA,

Appellant.

________________________________

Calendar Date: November 16, 2016

Before: Egan Jr., J.P., Lynch, Rose, Clark and Aarons, JJ.

__________

John R. Kelly, Monticello (Donna Marie Lasher, Youngsville,

of counsel), for appellant.

Ricciani & Jose LLP, Monticello (Jacqueline Ricciani of

counsel), for respondent.

Isabelle Rawich, South Fallsburg, attorney for the child.

__________

Aarons, J.

Appeal from a judgment and an amended judgment of the

Supreme Court (Meddaugh, J.), entered March 19, 2015 and March

23, 2015 in Sullivan County, granting, among other things,

custody of the parties' daughter to plaintiff, upon a decision of

the court.

Plaintiff (hereinafter the father) and defendant

(hereinafter the mother) are the parents of two sons (born in

1991 and 1995) and a daughter (born in 2007). After the mother's

disfellowship from Jehovah's Witnesses, the father commenced this

divorce action in 2013. Following a trial, Supreme Court, among
-2- 521214 

other things, granted the parties joint legal custody of the

daughter, awarded primary physical custody of the daughter to the

father and set forth a parenting schedule for the mother.1 The

mother now appeals, arguing that Supreme Court erred in awarding

primary physical custody of the daughter to the father. 

The primary concern when making an initial custody

determination is the best interests of the child (see Matter of

Gentile v Warner, 140 AD3d 1481, 1482 [2016]; Matter of Brown v

Akatsu, 125 AD3d 1163, 1164 [2015]). In determining the best

interests of a child, a court must consider various factors,

including "the parents' ability to provide a stable home

environment for the child, the child's wishes, the parents' past

performance, relative fitness, ability to guide and provide for

the child's overall well-being, and the willingness of each

parent to foster a relationship with the other parent" (Robert B.

v Linda B., 119 AD3d 1006, 1007 [2014], lv denied 24 NY3d 906

[2014] [internal quotation marks, brackets and citation omitted];

see Matter of King v Chester, 123 AD3d 1352, 1353 [2014]). 

Supreme Court's credibility determinations are accorded great

deference, and its findings will not be disturbed so long as they

are supported by a sound and substantial basis in the record (see

Funaro v Funaro, 141 AD3d 893, 896 [2016]; Bowman v Engelhart,

112 AD3d 1187, 1187-1188 [2013]).

Contrary to the mother's contention, Supreme Court set

forth sufficient findings of fact and provided a cogent analysis

when making its custody determination (see Moor v Moor, 75 AD3d

675, 677 [2010]). To that end, the trial testimony revealed that

the parties are loving parents who are both capable of taking

care of the daughter. In this regard, the father helped the

daughter with her homework and played games and read books with

her. The mother would also help the daughter with her homework,

and they played in the park and went to see movies together. The

mother, however, works in Queens County and, therefore, spends

much of her time commuting from Sullivan County. She would leave

early in the morning and would not return to Sullivan County

1 The custody of the sons was not at issue as they were

emancipated by the time of trial.
-3- 521214 

until after the daughter had gone to bed and, at times, the

mother stayed in Queens County during the week. The daughter,

meanwhile, has lived her entire life in Sullivan County, where

she goes to school, attends religious meetings and has made close

friends. The father has also been the primary caretaker of the

daughter and has a flexible work schedule, which allows him to

help her get ready for school in the morning, pick her up at the

bus stop after school and attend any school-related events. In

view of the foregoing and giving the requisite deference to

Supreme Court's assessment of the witnesses's credibility, we

find that a sound and substantial basis exists in the record to

support Supreme Court's custody determination (see Matter of

Gentile v Warner, 140 AD3d at 1483; Matter of Barker v Dutcher,

96 AD3d 1313, 1314 [2012]).2

Although Supreme Court's judgment does not address the

mother's contention of parental alienation, inasmuch as our

authority is as broad as Supreme Court in custody matters (see

Dewitt v Sheiness, 42 AD3d 776, 777 [2007]), we disagree with the

mother that the father interfered with her relationship with the

daughter so as to render him an unfit custodial parent. 

Notwithstanding the fact that the father revealed to the sons the

reason for the mother's disfellowship from Jehovah's Witnesses,

there is no evidence indicating that this revelation was made in

the presence of the daughter. Furthermore, upon our review of

the entire record, the father encouraged the sons to maintain a

relationship with the mother and once delayed the bedtime of the

daughter during the week so that the daughter could see the

mother (compare Matter of Gerber v Gerber, 133 AD3d 1133, 1137-

1138 [2015], lv denied 27 NY3d 902 [2016]). As such, we find no

merit in the mother's parental alienation argument.

Egan Jr., J.P., Lynch, Rose and Clark, JJ., concur.

2 While not determinative, we note that the award of

primary physical custody to the father is in accord with the

position of the attorney for the child (see Matter of Coleman v

Millington, 140 AD3d 1245, 1247 n [2016]).
-4- 521214 

ORDERED that the judgment and amended judgment are

affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court