State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 8, 2015 518958 

____________________________________

In the Matter of ANDREA CC., 

Respondent, 

v MEMORANDUM AND ORDER

ERIC DD.,

Appellant.

(And Six Other Related Proceedings.)

____________________________________

Calendar Date: September 11, 2015

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

__________

Lisa A. Burgess, Indian Lake, for appellant.

Michelle I. Rosien, Philmont, for respondent.

Ellen S. Ross, Johnstown, attorney for the child.

__________

McCarthy, J.P.

Appeal from an order of the Family Court of Fulton County

(Skoda, J.), entered February 13, 2014, which, among other

things, granted petitioner's application, in a proceeding

pursuant to Family Ct Act article 6, to modify a prior order of

custody.

Petitioner (hereinafter the mother), who lives in Albany

County, and respondent (hereinafter the father), who lives in

Fulton County, are the parents of a daughter (born in 2008). In

2012, pursuant to a stipulated custody order, the parties agreed

to share joint legal custody of the child and alternated physical

custody weekly. The order also stipulated that any future
-2- 518958 

modification of the order would be based upon the best interests

of the child, without any showing of a change in circumstances. 

In July 2013, the mother, due in part to the child's attendance

in kindergarten being imminent and the parents living in

different school districts, filed a modification of custody

petition, seeking primary physical custody of the child, and a

violation petition, both in Fulton County. Shortly thereafter,

the father filed a modification petition seeking primary physical

custody of the child. In addition to filing a second violation

petition, the mother also filed another custody modification

petition and a violation petition, both in Albany County; these

were subsequently transferred to Fulton County. Thereafter, the

father filed a family offense petition against the mother and was

awarded temporary custody of the child during the pendency of the

proceedings. Following a fact-finding hearing, Family Court,

among other things, granted one of the mother's modification

petitions and awarded primary physical custody of the child to

the mother and parenting time to the father, while maintaining

joint legal custody. The court dismissed the remaining

petitions. The father appeals.

The father contends that Family Court's order granting

primary physical custody of the child to the mother was not in

the child's best interests. As the parties personally stipulated

that they did not need to show a change in circumstances when

seeking a modification of the 2012 order, our inquiry turns to a

best interests analysis. In making such a determination, Family

Court examines "such factors as the parents' past performance and

relative fitness, their willingness to foster a positive

relationship between the child and the other parent, as well as

their ability to maintain a stable home environment and provide

for the child's overall well-being" (Matter of Teri v Elliott,

122 AD3d 1092, 1093 [2014] [internal quotation marks and citation

omitted]; see Matter of Alleyne v Cochran, 119 AD3d 1100, 1100-

1101 [2014]). 

Here, in addition to evaluating other relevant factors

regarding the parties' home environments, employment and ability

to provide for the child, Family Court found the credibility of

the parties to be significant in determining the best interests

of the child. Specifically, although the father denied any
-3- 518958 

agreement, the court credited the mother's testimony that she and

the father had agreed that the child would attend school in

Albany County. The mother testified that, prior to the

commencement of these proceedings, the child was enrolled in

kindergarten and participated in school orientation where she

rode the school bus and met her teacher. Also, the court found

significant, and we agree, that the father misrepresented

material facts regarding the prior proceedings and the mother's

conduct during his ex parte communications with the court in

procuring the temporary custody order. To that end, the mother

was not made aware that the father was seeking custody of the

child until the police arrived with the father, who was

accompanied by numerous family and friends, to remove the child

pursuant to a temporary order of custody. 

The father exhibited a further lack of good judgment when,

without consulting with or informing the mother, he enrolled the

child in school in Fulton County, switched her pediatrician,

sought medical attention for a sunburn1 and enrolled her in

family counseling. In addition, the father engaged in further

inappropriate behavior when he repeatedly placed telephone calls

from the mother on speaker phone for family members and neighbors

to hear. Furthermore, testimony established that the father's

wife confronted the mother regarding a sunburn sustained by the

child while in the mother's care, which escalated into a heated

exchange and swearing in front of the child. The father's wife

also exhibited hostility toward the mother, particularly with the

mother's disregard of the wife's insistence that the mother

contact the child by calling the home telephone rather than the

father's cell phone. Although the record establishes that the

mother also has exhibited instances of poor judgment,

"accord[ing] great deference to Family Court's factual findings

and credibility determinations given its superior position to

observe and assess the witnesses' testimony and demeanor

firsthand," we find that there is a sound and substantial basis

1 We recognize that Family Court was mistaken when it

asserted that the father had not submitted medical records into

evidence to support his testimony that he had sought treatment

for the child's sunburn.
-4- 518958 

to support the court's decision that joint custody with primary

physical custody to the mother is in the child's best interests

(Matter of Daniel TT. v Diana TT., 127 AD3d 1514, 1515 [2015];

see Matter of Alleyne v Cochran, 119 AD3d at 1101).

Egan Jr., Lynch and Clark, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court