State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 17, 2015 519869 

______________________________________

In the Matter of LILLY NN.,

Respondent,

v

MEMORANDUM AND ORDER

JERRY OO.,

Appellant.

(And Three Other Related Proceedings.)

______________________________________

Calendar Date: October 15, 2015

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

__________

Monique B. McBride, Albany, for appellant.

Cowen Law Firm, Sidney (Sarah E. Cowen of counsel), for

respondent.

Susan B. McNeil, Ithaca, attorney for the children.

__________

Clark, J.

Appeal from an order of the Family Court of Delaware County

(Becker, J.), entered September 18, 2014, which granted

petitioner's application, in a proceeding pursuant to Family Ct

Act article 6, for custody of the parties' children.

Petitioner (hereinafter the mother) and respondent

(hereinafter the father) are the unmarried parents of two sons

(born in 2002 and 2004). The mother owns and operates a

restaurant and employed the father during their 12-year

relationship, which ended in 2013. At that time, the father

moved out of the family residence and found new employment. 
-2- 519869 

In March 2013, the mother commenced the first of the

instant proceedings seeking an order of custody, and, in May

2013, Family Court issued a temporary order of custody and

visitation, granting joint legal custody, with residential

custody to the mother and parenting time to the father "as the

parties may agree." The father subsequently filed a petition

seeking enforcement of the temporary order, alleging that the

mother was not allowing him access to the children and that the

children were being neglected. The mother in turn filed a

petition seeking sole custody and alleged the father's new home

was unfit for the children.1 Finally, the father filed a

petition for modification of the temporary order, as well as a

petition seeking full custody.

Over the summer of 2013, the temporary order was revised

twice, the first revision was at the prompting of the attorney

for the children who communicated the children's wishes to spend

more time with their father. Following court-ordered home

studies, drug testing, mental health and substance abuse

evaluations and a multi-day trial, Family Court awarded sole

legal custody of the children to the mother and visitation to the

father. The father now appeals. 

A court's primary concern in an initial custody

determination is the best interests of the children (see Eschbach

v Eschbach, 56 NY2d 167, 171 [1982]; Matter of Kayla Y. v Peter

Z., 125 AD3d 1126, 1127 [2015]). This determination is made "by

reviewing such factors as maintaining stability for the

child[ren], the child[ren's] wishes, the home environment with

each parent, each parent's past performance, relative fitness,

ability to guide and provide for the child[ren's] overall

well-being, and the willingness of each parent to foster a

relationship with the other parent" (Matter of Jolynn W. v

Vincent X., 85 AD3d 1217, 1217 [2011], lv denied 17 NY3d 713

[2011] [internal quotation marks and citations omitted]; see

1 The mother also filed a family offense petition alleging

that the father harassed her at her business. However, no

testimony was offered at trial to support this petition and it

was dismissed. 
-3- 519869 

Matter of Kayla Y. v Peter Z., 125 AD3d at 1127). "Given Family

Court's superior ability to observe and assess the witnesses'

testimony and demeanor firsthand, its factual findings and

credibility determinations — if supported by sound and

substantial evidence — will not be disturbed" (Matter of DiMele v

Hosie, 118 AD3d 1176, 1177 [2014] [citations omitted]).

At the fact-finding hearing, the parties both testified to

a history of co-parenting their children. The father regularly

fed the children, helped them with their schoolwork, communicated

with the children's teachers, took them to medical appointments

and cared for them in their daily needs. The mother provided

shelter and insurance for the children and regularly picked the

children up from their after-school program, took them to her

restaurant and fed them dinner. Furthermore, the court-ordered

evaluations indicated that both parents were fit and could

provide safe and appropriate homes for the children. Drug

testing of each of the parties revealed negative results for the

father and a result for the mother that aligned with her

prescribed medication. The father's substance abuse evaluation

indicated no substance abuse and no treatment was recommended. 

Moreover, the court-ordered mental health evaluation described

both parents as "possess[ing] positive parental attributes from

which their children can benefit" and observed that their

difficulties did not seem to be "negatively impacting each

party's parenting abilities or capacity to co-parent." Both

evaluations recommended a joint custodial arrangement. 

Family Court's primary focus was on certain emotional and

academic issues concerning the older child. Specifically, in

January 2014, the older child was involved in an incident in

which he, while unsupervised at his mother's home, shot another

child with a pellet gun, causing injury. Additionally, the older

child had a history of aggression toward animals, which the

mother attributed to the father taking the children hunting and

trapping at a young age. However, at the time of trial, the

father had refrained from taking the children trapping for a

period of at least two years in an effort to comply with an

earlier recommendation from child protective services. As a

result of the January 2014 incident, the mother was the subject

of an investigation by child protective services that was
-4- 519869 

"indicated" and the child was placed on probation and began

counseling. At the time of trial, the child had attended eight

therapy sessions, all of which the mother had attended and none

of which the father had attended. While crediting the father's

testimony that he had made an effort to become more involved in

the child's counseling, Family Court found his level of effort to

be inadequate and determined that the mother was the parent more

capable to deal with the behaviors of the older child to the

extent that she expressed more concern and was the one to arrange

and attend counseling with the older child. On this point, we

disagree. 

In our view, it is significant that the most alarming

incidents of concerning behavior on the part of the older child

occurred at the mother's house when the child was using a gun

unsupervised. The mother, who had no training in gun use and

testified to having misgivings about whether use of the pellet

gun should be allowed at all, nonetheless left the child

unsupervised with the weapon.2 Conversely, the father – who

admittedly desires to raise his children in the hunting and

trapping "way of life," teaching them to raise animals for food –

does not permit his children to use guns unsupervised and

attempts to educate them in safety and proper usage. Also of

importance is the father's testimony that he would consider

refraining from hunting with his older child if advised by a

professional to do so. In this regard, we see the mother's

conduct with respect to the father's attendance at counseling to

be somewhat exclusionary to the extent that she did not

immediately inform the father that the child was starting

counseling and initially told the father that he could not attend

unless he paid for a portion of the session. 

We likewise disagree with Family Court's assessment that

the mother was in a better position to support the children

academically because of her proximity to the children's school. 

Rather, the record shows that, like the mother, the father spends

time on a regular basis helping with homework, understands his

2 The pellet gun in question was given to the child by a

friend of the mother.
-5- 519869 

own strengths and weaknesses as a tutor, on a practical level

knows the workflow of assignments and communicates sufficiently

with the guidance counselor and the older child's primary

teacher.

Additionally, we find error in Family Court's determination

to not consider the wishes of the children. In this regard,

Family Court found that both parents had attempted to improperly

influence their children's wishes regarding custody, thereby

"cancelling out" the children's preferences. While there is a

basis in the record to show that the mother attempted to

influence the children, there is no testimony that demonstrates a

similar attempt by the father. Thus, in light of the children's

"ability to articulate [their] preferences as reflected in the

Lincoln hearing3 transcript," at minimum, the unequivocal

expression of preferences are "'entitled to consideration'"

(Matter of Rivera v LaSalle, 84 AD3d 1436, 1439 [2011], quoting

Matter of Lowe v O'Brien, 81 AD3d 1093, 1096 [2011], lv denied 16

NY3d 713 [2011]). 

Thus, considering the record before us as a whole, we find

Family Court's award of sole custody to the mother to be without

a sound and substantial basis. Acknowledging that the mother had

difficulty recognizing that the children are entitled to have a

meaningful relationship with their father – a factor which Family

Court did not expressly evaluate – upon this record, we do not

find that the parties' history was such that joint custody was

inappropriate (compare Matter of Brown v Akatsu, 125 AD3d 1163,

1165-1166 [2015]; Matter of Koch v Koch, 121 AD3d 1201, 1201-1203

[2014]; Matter of DiMele v Hosie, 118 AD3d at 1177-1178; Fiacco v

Fiacco, 93 AD3d 1095, 1096-1097 [2012]). Despite the mother's

obvious dislike for the father, throughout the rather lengthy

3 Family Court violated the confidences of the children

made during their Lincoln hearing (see Matter of Verry v Verry,

63 AD3d 1228, 1229 [2009], lv denied 13 NY3d 707 [2009]). While

there is little question that the court's disclosures were

improper, we do not find them to be an independent basis to

disturb the custody determination (see Matter of Rivera v

LaSalle, 84 AD3d 1436, 1437 [2011]).
-6- 519869 

duration of these proceedings, the parties fairly successfully

maintained joint custody of the children who, by all accounts,

enjoyed spending substantial time with both of their parents. 

Both homes were found to be safe and adequate, the concerns over

drug or alcohol abuse were unfounded, the children were provided

for by both parents and the father openly expressed the

importance of acting in the best interests of the children and

encouraging their relationships with their mother. Thus, we find

no basis in the record to conclude that the temporary arrangement

awarding the parties joint legal custody should not be made

permanent. Although not binding upon Family Court (see Matter of

Benjamin v Lemasters, 125 AD3d 1144, 1147 [2015]; Robert B. v

Linda B., 119 AD3d 1006, 1009 [2014], lv denied 24 NY3d 906

[2014]), in light of the foregoing, we note that the

recommendations of joint custody in both court-ordered

evaluations seem especially significant.

Accordingly, we reverse the order of Family Court to the

extent that it granted sole legal custody to the mother and award

the parties joint legal custody of the children with primary

physical custody to the mother.4 We also find it is in the best

interests of the children to expand the father's parenting time. 

First, the father's weekends should be expanded to include Sunday

evening and Monday until the beginning of the school day. The

father is responsible for getting the children to school on

Monday mornings. Second, with respect to summer vacation, the

father is awarded two weeks of uninterrupted parenting time –

taken either separately or consecutively – and he shall provide

written notice to the mother 30 days prior to the vacation. No

notice to Family Court is necessary. Nor is it necessary for the

father to refrain from working during that time. All of the

other provisions of the September 12, 2014 custodial order shall

remain in effect.

Any remaining contentions, to the extent not specifically

addressed herein, have been considered and found to be without

merit.

4 We note that the attorney for the children now argues in

favor of an award of sole legal custody to the father. 
-7- 519869 

Garry, J.P., Egan Jr. and Rose, JJ., concur.

ORDERED that the order is modified, on the law and the

facts, without costs, by reversing so much thereof as awarded

sole legal custody of the children to petitioner; the parties are

awarded joint legal custody with primary physical custody to

petitioner and respondent's parenting time with the children is

adjusted as set forth in this Court's decision; and, as so

modified, affirmed. 

ENTER:

Robert D. Mayberger

Clerk of the Court