State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: May 5, 2016 520915 

________________________________

In the Matter of MATTHEW R.

FRITTS,

Respondent,

v MEMORANDUM AND ORDER

TAMMY SNYDER,

Appellant.

(And Another Related Proceeding.)

________________________________

Calendar Date: March 24, 2016

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

__________

Lisa K. Miller, McGraw, for appellant.

Margaret McCarthy, Ithaca, for respondent.

Randolph V. Kruman, Cortland, attorney for the child.

__________

Egan Jr., J.

Appeal from an order of the Family Court of Cortland County

(Campbell, J.), entered April 15, 2015, 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 father) and respondent

(hereinafter the mother) are the unmarried parents of a son (born

in 2009). Within two or three months of the child's birth, the

father began visiting with the child for a few hours each week;

as the child grew older, the father's visitations expanded to
-2- 520915 

every other weekend and, by September 2013, the parties were

alternating physical custody of the child on a weekly basis. In

the fall of 2013, the child's maternal grandmother became ill;

the grandmother entered a residential care facility in February

2014 and died in August 2014. During this time period, and at

the mother's request, the child began spending more time at the

father's residence.

By all accounts, this arrangement worked well until August

2014 when the father read in a local newspaper that the mother

had been arrested for driving while intoxicated in April 2014. 

In response, the father reached out to a deputy for the Cortland

County Sheriff's Department, who was the father of the mother's

other child, and the deputy shared his concerns regarding the

mother's alcohol use.1 The father then contacted an attorney and

thereafter learned that the mother also had been arrested for

driving while intoxicated in 2012.2 Based upon this information,

the father elected not to return the child to the mother in

September 2014, as the result of which the mother did not see the

child for several weeks.

The father then commenced this proceeding seeking custody

of the child, and the mother cross-petitioned for similar relief. 

In October 2014, Family Court issued a temporary order awarding

physical custody to the father and visitation to the mother. 

Following a hearing on the petitions, Family Court – although

1 The deputy and the mother had joint legal custody of

their daughter with primary physical custody to the deputy and

visitation to the mother three weekends each month – together

with shared holidays and vacations.

2 With respect to the 2012 offense, the mother pleaded

guilty to driving while ability impaired, paid various fines and

received a conditional license. Following the 2014 offense, the

mother pleaded guilty to aggravated driving while intoxicated and

aggravated unlicensed operation of a motor vehicle and was placed

on probation for three years. The mother also was required to

wear an ankle monitor, which was designed to detect alcohol in

her system, for a period of time.
-3- 520915 

clearly displeased with the father's unilateral decision to

withhold the child from the mother in September 2014 – granted

the father's application and awarded the parties joint legal

custody of the child with primary physical custody to the father

and visitation to the mother on three consecutive weekends each

month, together with shared holidays and alternating weeks of

parenting time during the summer. This appeal by the mother

ensued.

"The paramount consideration in an initial custody

proceeding is the child's best interests, taking into

consideration such factors as the parents' past performance,

relative fitness, willingness to foster the child's relationship

with the other parent and ability to maintain a stable home and

provide for the child's overall well-being" (Matter of Benjamin v

Lemasters, 125 AD3d 1144, 1145 [2015] [citations omitted]; see

Matter of Rosetta BB. v Joseph DD., 125 AD3d 1205, 1206 [2015]). 

In light of "Family Court's superior ability to observe and

assess the witnesses' testimony and demeanor firsthand" (Matter

of DiMele v Hosie, 118 AD3d 1176, 1177 [2014]), this Court will

defer to Family Court's factual findings and credibility

assessments – provided such determinations are supported by a

sound and substantial basis in the record (see Matter of Adam MM.

v Toni NN., 124 AD3d 955, 955 [2015]).

Here, Family Court was presented with two generally fit and

loving parents – each of whom possessed various strengths and

shortcomings. The father, who has long maintained a consistent

and strong presence in the child's life despite the absence of a

formal custody order, is a self-employed dairy farmer – managing

a 300-acre farm and approximately 100 cows. The farm, where the

child spent most of his time before and after preschool each day,

is located a short distance from the father's five-bedroom home,

which he shared with his girlfriend, the child and – at various

times – his daughter and his girlfriend's sons from prior

relationships. The father testified as to his daily routine with

the child, as well as his efforts to address issues regarding the

child's teeth and need for speech therapy. The father also

acknowledged the importance of the mother's role in the child's

life and indicated that he was able to communicate with her in a

cooperative fashion. At the time of the hearing, the mother, who
-4- 520915 

did not then have a valid driver's license3 and still was on

probation, was taking classes at a local community college and

living in a three-bedroom apartment that she obtained through a

subsidized housing program. Although the mother indicated that

she was "doing daycare after school," an apparent reference to

providing daycare services in her home, the record reflects that

she primarily was relying upon food stamps and the $13,000 that

she received in life insurance and retirement benefits following

her mother's death to support herself. The mother also was

participating in counseling sessions at the time of the hearing,

although her testimony was inconsistent as to whether such

counseling was voluntary or was a term and condition of her

probation. In this regard, the mother had been evaluated and

diagnosed as alcohol dependent, but she disagreed with that

diagnosis, stating instead, "I think I need the counseling for 

. . . reasons other than alcohol."

The parties are to be commended for establishing and

maintaining an informal – and for a number of years successful –

shared custody arrangement, as well as their stated willingness

to continue to work together in a cooperative fashion for the

good of their child, and it is clear that the child benefits from

having both of his parents actively involved in his life. As

Family Court aptly observed, however, alternating physical

custody of a school-age child whose parents reside in different

school districts simply is not practical, thereby necessitating

an award of primary physical custody to either the father or the

mother. In this regard, while we share Family Court's concerns

regarding the father's unilateral decision to withhold the child

from the mother for a period of time beginning in September 2014,

we cannot fault the court for being equally concerned regarding

the mother's alcohol-related history. Based upon those

considerations, and taking into account the father's more

consistent schedule and employment, we agree that the father is

better able to provide a more secure and stable environment for

the child. As we are satisfied that Family Court's resolution of

this matter is supported by a sound and substantial basis in the

3 The mother also testified that her vehicle previously had

been repossessed.
-5- 520915 

record, the underlying order is affirmed.

McCarthy, J.P., Rose, Devine and Clark, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court