State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 30, 2015 517911 

____________________________________

In the Matter of DANIEL TT.,

Respondent,

v

MEMORANDUM AND ORDER

DIANA TT.,

Appellant.

(And Two Other Related Proceedings.)

____________________________________

Calendar Date: March 26, 2015

Before: Peters, P.J., Lahtinen, Rose and Devine, JJ.

__________

Ted J. Stein, Woodstock, for appellant.

Betty J. Potenza, Highland, attorney for the children.

__________

Peters, P.J.

Appeal from an order of the Family Court of Ulster County

(Maney, J.), entered October 2, 2013, which, among other things,

partially granted petitioner's application, in a proceeding

pursuant to Family Ct Act article 6, for custody of the parties'

children.

Petitioner (hereinafter the father) and respondent

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

2006 and 2008). In December 2011, the mother traveled to Florida

with the children without the father's consent and in violation

of a court order prohibiting her from removing the children from

the state. The father immediately petitioned for custody and was

awarded temporary legal and physical custody of the children in

January 2012. Thereafter, he commenced several proceedings
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seeking modification of the visitation provisions of the

temporary order and alleging that the mother had committed

various family offenses. Following a fact-finding hearing,

Family Court granted the parties joint legal custody of the

children, with primary physical custody to the father and

parenting time to the mother. The mother appeals. 

"An initial custody determination is controlled by the best

interests of the child[ren], taking into consideration such

factors as the parents' past performance and relative fitness,

their willingness to foster a positive relationship between the

child[ren] and the other parent, as well as their ability to

maintain a stable home environment and provide for the

child[ren]'s overall well-being" (Matter of Jarren S. v Shaming

T., 117 AD3d 1109, 1110 [2014] [internal quotation marks and

citations omitted]; see Matter of Benjamin v Lemasters, 125 AD3d

1144, 1145 [2015]; Matter of Brown v Akatsu, 125 AD3d 1163, 1164

[2015]). We accord 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, and will not disturb its custodial

determination if supported by a sound and substantial basis in

the record (see Matter of Kayla Y. v Peter Z., 125 AD3d 1126,

1127 [2015]; Matter of Alleyne v Cochran, 119 AD3d 1100, 1101

[2014]; Matter of DiMele v Hosie, 118 AD3d 1176, 1177 [2014]).

The record amply supports Family Court's determination that

the best interests of the children will be served by granting

physical custody to the father. While the mother has been the

primary caregiver for most of the children's lives, evidence

concerning her behavior seriously called into question her

parental judgment and fitness. Testimony was presented that the

mother shoplifted while the children were in her care and, at

times, used them to aid her in those endeavors. When she was

caught shoplifting from a department store in September 2011, the

mother declined the opportunity to call someone to pick up the

children, choosing instead to expose them to her arrest. The

mother engaged in additional criminal conduct that led to a

number of arrests and several convictions in the months preceding

the hearing, and, as previously mentioned, she disobeyed a court

order prohibiting her from removing the children from the state. 
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In his testimony, the father explained that the mother regularly

screamed at the children when they misbehaved and described

several angry outbursts by the mother in their presence. After

the father was awarded temporary custody, the mother engaged in

various hostilities against him and directed a number of

accusations at him, including making an unfounded report to child

protective services that, among other things, he and the paternal

grandfather had physically and sexually abused the children. 

Family Court was also concerned about the mother's ability to

financially provide for the children, noting that she was

unemployed and remained financially dependent upon her parents,

with whom she resides. 

The father, on the other hand, has maintained steady

employment and provides a stable environment for the children in

the home where they have lived since birth. Further, his parents

live nearby and care for the children while he is working and the

children are not in school. While the father is not without his

own shortcomings, Family Court fully considered the father's

prior prescription drug dependency and other lapses in judgment

in the course of assessing the parties' respective strengths and

weaknesses, past performance and ability to provide for the

children's overall well-being. Considering the totality of the

circumstances and according due deference to Family Court's

determination that the father's testimony was more credible (see

Matter of Joseph WW. v Michelle WW., 118 AD3d 1054, 1057 [2014];

Matter of Mahoney v Regan, 100 AD3d 1237, 1238 [2012], lv denied

20 NY3d 859 [2013]), we find a sound and substantial basis for

the court's conclusion that an award of physical custody to the

father is in the children's best interests.1

Lahtinen, Rose and Devine, JJ., concur.

1 Although by no means determinative, we note that this

conclusion is in accord with the position advanced by the

attorney for the children both at the hearing and on appeal (see

Matter of Lawrence v Kowatch, 119 AD3d 1004, 1006 n 2 [2014];

Matter of Robert AA. v Colleen BB., 101 AD3d 1396, 1399 n 2

[2012], lv denied 20 NY3d 860 [2013]).
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ORDERED that the order is affirmed, without costs. 

ENTER:

Robert D. Mayberger

Clerk of the Court