State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 20, 2016 521648 

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In the Matter of JOSEPH A.,

Respondent,

v MEMORANDUM AND ORDER

GINA ZZ.,

Appellant.

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Calendar Date: September 14, 2016

Before: McCarthy, J.P., Lynch, Rose, Devine and Mulvey, JJ.

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Theodore J. Stein, Woodstock, for appellant.

Paul L. Gruner, Kingston, for respondent.

Marian B. Cocose, Bearsville, attorney for the children.

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Devine, J.

Appeal from an order of the Family Court of Ulster County

(McGinty, J.), entered July 17, 2015, which, among other things,

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 children (born in

2008 and 2010). The mother and the father filed petitions in

2014 seeking, as is relevant here, custody of the children. 

Family Court issued several temporary orders that awarded joint

legal custody of the children and specified parenting time to

each parent. 
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The matters eventually proceeded to a fact-finding hearing

and, after the mother failed to appear at a continuation of that

hearing despite knowing that her last-minute request to adjourn

it had been denied and that her testimony had not yet been

completed, Family Court struck her testimony in full and

dismissed her custody petition.1 Family Court heard the

remainder of the testimony and conducted a Lincoln hearing that

day, after which it rendered a bench decision awarding the father

sole legal and primary physical custody of the children and

specified parenting time to the mother. The mother appeals from

the ensuing custody order.

We affirm. An initial custody determination focuses upon

the best interests of the children, implicating factors such as

the past performance and relative fitness of the parents, their

willingness to encourage a positive relationship between the

children and the other parent, and their ability not only to

establish a stable home environment, but also to provide for the

overall well-being of the children (see Matter of Basden v

Faison, 141 AD3d 910, 910-911 [2016]; Matter of Lawton v Lawton,

136 AD3d 1168, 1168-1169 [2016]). This Court accords due

deference to the factual findings and credibility assessments of

Family Court, and we will only disturb a custody determination if

it is unsupported by a sound and substantial basis in the record

(see Matter of Basden v Faison, 141 AD3d at 911; Matter of Lawton

v Lawton, 136 AD3d at 1169). 

Family Court found the testimony of the father and paternal

grandmother to be credible, and additionally noted that the

mother's testimony would not have been credited had it been

considered. The father afforded a stable environment for the

children at the home they have resided in for most of their

lives, providing for them with a steady job that he has held for

almost a decade. The mother has accused the father of abusing

her and the children and being a habitual user of illegal drugs,

but the father denied all of those claims. His denials were

1 An amended custody petition filed by the mother had

previously been withdrawn, and she did not appeal from the order

dismissing her original custody petition upon her nonappearance.
-3- 521648 

supported by the fact that numerous child protective reports have

been made regarding his behavior, all of which were investigated

and deemed to be unfounded. The mother, in contrast, has

displayed questionable judgment by acting to limit the father's

contact with the children, behaving aggressively toward the

paternal grandmother during custody exchanges and failing to

consistently transport the parties' daughter to school on time. 

The father has attempted to communicate with the mother regarding

the children despite her hostility towards him, only to have

those efforts rebuffed. Thus, upon reviewing the record in its

totality, including a custodial evaluation prepared by a

psychologist and the confidential statements of the children, we

find a sound and substantial basis to support the order of

custody and parenting time (see Matter of Basden v Faison, 141

AD3d at 911-912; Matter of Daniel TT. v Diana TT., 127 AD3d 1514,

1515-1516 [2015]; Matter of Jarren S. v Shaming T., 117 AD3d

1109, 1110-1111 [2014]). 

Lastly, to the extent that the mother contends that Family

Court was biased against her, we have examined that claim and

found it to be unavailing.

McCarthy, J.P., Lynch, Rose and Mulvey, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court