State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 14, 2016 520299 

_________________________________

In the Matter of DALILA N.

BENNETT,

Appellant,

v

JEREMY M. ABBEY,

Respondent.

(Proceeding No. 1.)

_________________________________ MEMORANDUM AND ORDER

In the Matter of JEREMY M.

ABBEY,

Respondent,

v

DALILA N. BENNETT,

Appellant.

(Proceeding No. 2.)

(And Another Related Proceeding.)

_________________________________

Calendar Date: May 25, 2016

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

__________

Margaret McCarthy, Ithaca, for appellant.

Samuel Castellino, Big Flats, for respondent.
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Christopher G. Quinlan, Corning, attorney for the child.

__________

Egan Jr., J.

Appeal from an order of the Family Court of Schuyler County

(Morris, J.), entered December 19, 2014, which, among other

things, granted petitioner's application, in proceeding No. 2

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

custody and visitation.

Dalila N. Bennett (hereinafter the mother) and Jeremy M.

Abbey (hereinafter the father) are the unmarried parents of a son

(born in 2008). In 2012, the parties, both of whom then resided

in Schuyler County, entered into an order on consent wherein they

were awarded joint legal custody of the child with primary

physical custody to the mother and extensive visitation to the

father – specifically, alternating weekend visitations, certain

midweek visitations and alternating two-week visitations during

the summer. In February 2014, the mother commenced the first of

these proceedings seeking to reduce the father's visitation

periods with the child – contending, among other things, that the

father was not utilizing the visitation that he had been awarded. 

Less than two months later, the mother elected – without

informing the father or seeking prior approval from Family Court

– to relocate to the City of Watertown, Jefferson County. The

father then commenced the second of these proceedings alleging

substantial interference with his visitation rights and seeking

primary physical custody of the child. Thereafter, in July 2014,

the father – after finding what he estimated to be 200 flea bites

on the child – filed another petition seeking temporary physical

custody of the child pending resolution of the prior petitions.

A fact-finding hearing ensued, whereupon it was agreed that

proof would be adduced as to all three petitions, as well as with

respect to the mother's unilateral decision to relocate to

Jefferson County. After hearing testimony from the parties and

the child's paternal grandfather, Family Court, among other

things, found that the mother's relocation constituted a change
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in circumstances and, further, that the child's best interests

would be served by continuing joint legal custody with primary

physical custody to the father and specified periods of

visitation to the mother. The mother now appeals, contending

only that she was denied the effective assistance of counsel.

"A finding of ineffective assistance of counsel requires

that the proponent demonstrate that he or she was deprived of

reasonably competent and, thus, meaningful representation"

(Matter of Robinson v Bick, 123 AD3d 1242, 1242 [2014] [internal

quotation marks, brackets and citations omitted]; see Matter of

Heater v Peppin, 92 AD3d 1169, 1169 [2012]). Counsel's

representation need not be perfect (see People v Gokey, 134 AD3d

1246, 1247 [2015], lv denied ___ NY3d ___ [May 9, 2016]) and, as

"[i]t is not the role of this Court to second-guess counsel's

trial strategy or tactics" (Matter of Bella FF. [Margaret

GG.–James HH.], 130 AD3d 1187, 1190 [2015] [internal quotation

marks and citation omitted]), a party seeking to prevail on an

ineffective assistance of counsel claim must do something more

than engage in hindsight speculation as to the viability of

counsel's strategy (see Matter of Alexisana PP. [Beverly PP.],

136 AD3d 1170, 1172-1173 [2016]).

Initially, to the extent that the mother faults counsel for

failing to amend or file certain pleadings and, further, for

consenting to the joinder of the father's July 2014 modification

petition with the previously filed petitions for purposes of the

underlying hearing, we find the mother's arguments to be

unpersuasive. The record reflects that counsel entered a general

denial as to the father's April 2014 petition, and Family Court,

in an effort to expedite these proceedings, urged the parties to

"use [their] judgment" with respect to the filing of additional

pleadings – particularly in view of the fact that all parties

were "on notice" of the then recent allegations made by the

mother, as well as the need to address the relocation issue. 

Additionally, when questioned as to the possibility of "merging"

the father's July 2014 petition with the matters scheduled for

the fact-finding hearing, counsel indicated that he was prepared

to proceed. Inasmuch as all relevant issues were fully explored

at the ensuing hearing, we find no basis for concluding that

counsel's performance was deficient in this regard (see Matter of
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Shangraw v Shangraw, 61 AD3d 1302, 1304 [2009]). We reach a

similar conclusion with respect to counsel's alleged shortcomings

in terms of conducting pretrial discovery. Although the mother

chastises counsel for failing to subpoena certain child

protective services records, counsel may well have made a

tactical decision that, in light of the mother's admission that

she previously had been under the supervision of the local

department of social services, production of such records would

not reflect favorably upon his client (see Matter of Bonneau v

Bonneau, 97 AD3d 917, 918 [2012], lv denied 19 NY3d 815 [2012];

Matter of Hurlburt v Behr, 70 AD3d 1266, 1267-1268 [2010], lv

dismissed 15 NY3d 943 [2010]).

As for counsel's performance at the hearing, it is well

settled that counsel's decision to forgo an opening statement "is

not necessarily indicative of ineffective legal representation"

(People v Aiken, 45 NY2d 394, 400 [1978]; see People v Rose, 307

AD2d 270, 271 [2003]; compare Matter of Jaikob O. [William O.],

88 AD3d 1075, 1077 [2011]). Similarly, "the failure to call

particular witnesses does not necessarily constitute ineffective

assistance of counsel – particularly where the record fails to

reflect that the desired testimony would have been favorable"

(Matter of Ysabel M. [Ysdirabellinna L.–Elvis M.], 137 AD3d 1502, 

1505 [2016] [internal quotation marks, ellipsis and citations

omitted]; see Matter of Thompson v Gibeault, 305 AD2d 873, 875

[2003]). The mother's further assertions – that counsel was

unprepared for the hearing, failed to effectively cross-examine

the father, misapplied the law governing the mother's relocation

request and neglected to elicit sufficient information regarding

the alleged economic necessity for the move – are equally

unavailing. Our review of the record confirms that counsel

conducted a vigorous cross-examination of the father

(particularly with respect to the father's exercise of his

visitation rights under the prior order and the injuries that the

child sustained while in his care), raised appropriate objections

and otherwise made a cogent presentation of the mother's request

for relocation. In this regard, while the mother's testimony as

to the economic necessity for the move and the precise manner in

which such move was in the child's best interests indeed lacked a

certain measure of specificity, counsel may well have made a

tactical decision not to dwell upon these matters – particularly
-5- 520299 

if close scrutiny of those issues would not have benefitted the

mother. The remaining deficiencies cited by the mother are

equally meritless and, as we are otherwise satisfied that the

mother received meaningful representation, her ineffective

assistance of counsel claim must fail.

Finally, although not directly raised by the mother in her

brief, with agree with the father and the attorney for the child

that the mother's unilateral relocation, "which significantly

increased the visitation distance between [the father] and the

child" (Matter of Gregio v Rifenburg, 3 AD3d 830, 832 [2004]) and

effectively rendered the father's midweek visitations with the

child impossible, constituted a change in circumstances, thereby

triggering a best interests inquiry by Family Court. Further,

upon due consideration of all of the relevant factors, we are

satisfied that the best interests of the child warranted granting

the father primary physical custody. Accordingly, Family Court's

order is affirmed.

Peters, P.J., McCarthy, Lynch and Devine, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court