State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 12, 2017 521939 

__________________________________

In the Matter of RITA DEVONE

MANELL,

Respondent,

v

MEMORANDUM AND ORDER

TIMOTHY MANELL,

Appellant.

(And Another Related Proceeding.)

__________________________________

Calendar Date: November 17, 2016

Before: Peters, P.J., Garry, Devine, Mulvey and Aarons, JJ.

__________

John Ferrara, Monticello, for appellant.

Jane M. Bloom, Monticello, for respondent.

Bruce Perlmutter, Woodridge, attorney for the child.

__________

Garry, J.

Appeal from an order of the Family Court of Sullivan County

(Meddaugh, J.), entered August 13, 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 mother) and respondent

(hereinafter the father) are the parents of a son (born in 2002). 

The parties married in 2002 and resided together until 2014, when

the father vacated the marital residence, where the mother

continues to reside. After the parties' separation, the mother
-2- 521939 

commenced a Family Ct Act article 6 proceeding seeking custody of

the child, and the father subsequently commenced a proceeding

seeking the same relief. Following Lincoln and fact-finding

hearings, Family Court awarded the parties joint physical and

legal custody, with weekday physical custody to the mother,

shared holidays and vacations and weekend parenting time for the

father for two out of every three weekends, together with further

weekdays as the parties agree. The father appeals. 

The focus in making an initial custody determination is on

the best interests of the child, involving the consideration of

such factors as "'the parents' relative fitness, past performance

and ability to provide a stable home environment for the child,

as well as each parent's willingness to foster the child's

relationship with the other parent'" (Matter of Greenough v

Imrie, 140 AD3d 1365, 1365 [2016], quoting Matter of Brown v

Akatsu, 125 AD3d 1163, 1164 [2015]). Recognizing Family Court's

"superior position to assess witness credibility and make

findings of fact," this Court will not disturb a decision that is

supported by a sound and substantial basis in the record (Matter

of Southammavong v Sisen, 141 AD3d 905, 906 [2016]; see Matter of

Lawton v Lawton, 136 AD3d 1168, 1169 [2016]). 

The father asserts that the child wishes to live primarily

with him and have weekend parenting time with the mother. The

attorney for the child concurs with the father's position, and

further argues that, significantly, the child's wishes have not

changed in the period since the trial determination. Although

the child's desires are considered as part of the best interests

analysis, they are "but one factor to be considered . . . [and]

should not be considered determinative," and "the potential for

influence having been exerted on the child" must also be

considered (Eschbach v Eschbach, 56 NY2d 167, 173 [1982]; see

Matter of Benjamin v Lemasters, 125 AD3d 1144, 1147 [2015]). 

Here, we note that the father's testimony reveals that he spoke

to the child on at least four separate occasions regarding with

whom he wanted to live. Contrary to the father's argument, we

find that Family Court's decision reveals that it considered the

child's wishes as part of its best interests analysis, although

the request was not granted (see Matter of Rivera v LaSalle, 84

AD3d 1436, 1438 [2011]; Matter of Rutland v O'Brien, 143 AD3d
-3- 521939 

1060, 1062 [2016]). 

Family Court found both parties to be fit and loving

parents who are able to provide stable homes and cooperate

regarding visitation and the child's needs and activities. The

teenage child resides with the mother in his childhood home and

continues to attend the same school that he has attended since

pre-kindergarten. The child has regular contact with certain

members of the mother's family who are her immediate neighbors. 

The father resides with the child's paternal grandparents, who

have indicated that the father and the child may live at their

residence as long as is necessary. The mother works part time

and provides for someone else to be present for the child when

necessary. The father works full time, but does not work on the

weekends during his parenting time, and the child's grandparents

are otherwise available to watch the child. Assistance with

schoolwork and facilitation of the child's extracurricular

activities are provided by both parents. 

Family Court acknowledged the mother's history of

alcoholism and found the mother's undisputed sobriety since

November 2012 to be a laudable achievement. Regarding the

mother's allegations of domestic violence, the court credited

certain testimony by the father in concluding that the incidents

did not result in any basis for finding him unfit for providing

adequate moral guidance, and further found that these incidents

had occurred solely in the past, prior to the parties'

separation. In the absence of further altercations after the

parties' separation, the record supports the finding that these

incidents do not currently affect the best interests of the

child. 

Family Court found, and the record supports, that "the best

interests of [the] child[] are served by a continuing

relationship with both parents" (Matter of Bennett v Bennett, 208

AD2d 1042, 1042 [1994]; see Weiss v Weiss, 52 NY2d 170, 175

[1981]). In rendering the determination, the court specifically

found that the mother has been "extremely cooperative" with the

father, and "has not refused any requests for him to spend

additional time with" the child. The testimony of both parties

indicates that the mother has been the child's primary caretaker,
-4- 521939 

whereas the father frequently participates in hunting and other

outdoor activities with the child – activities which Family Court

found to be an "integral part of [the child's] identity." The

mother testified that she only occasionally participates in

outdoor activities with the child. In light of the parties'

distinct roles in their child's life, we cannot find that the

determination failed to balance the time shared with the two

parents in an appropriate manner. Family Court's order

acknowledged the child's history of outdoor activities with the

father, while also recognizing a need to "ensure that the

mother's relationship with the child will be promoted and

preserved." Under these circumstances, we find the award of

primary weekday custody to the mother with substantial weekend

parenting time to the father to be supported by a sound and

substantial basis in the record, and we will not disturb it (see

Matter of Lawton v Lawton, 136 AD3d at 1169; Matter of Holland v

Klingbeil, 118 AD3d 1077, 1079 [2014]; Matter of Gordon v

Richards, 103 AD3d 929, 931 [2013]).1

Peters, P.J., Devine, Mulvey and Aarons, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

1 At oral argument, the father withdrew his further

contention that the child's statements in the Lincoln hearing

should be given evidentiary value (see Matter of Heasley v Morse,

144 AD3d 1405, 1408 [2016]; Matter of Christine TT. v Dino UU.,

143 AD3d 1065, 1068 [2016]).