State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 29, 2016 520990 

__________________________________

In the Matter of THOMAS J. 

BEREZNY,

Appellant,

v

MEMORANDUM AND ORDER

JESSICA RABY,

Respondent.

(And Another Related Proceeding.)

__________________________________

Calendar Date: November 21, 2016

Before: McCarthy, J.P., Lynch, Rose, Clark and Aarons, JJ.

__________

Elena Jaffe Tastensen, Saratoga Springs, for appellant.

Susan J. Civic, Saratoga Springs, for respondent.

Patricia L.R. Rodriguez, Schenectady, attorney for the

child.

__________

McCarthy, J.P.

Appeal from an amended order of the Family Court of Fulton

County (Skoda, J.), entered September 8, 2014, which, among other

things, dismissed petitioner's application, in a proceeding

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

custody.

Petitioner (hereinafter the father) and respondent

(hereinafter the mother) are the parents of a son (born in 2009). 

In 2012, Family Court entered an order granting the parents joint

legal and shared physical custody of the child with an
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alternating weekly schedule of parenting time. In April 2014,

the father filed a petition to modify the custody order seeking

primary physical custody so the child could attend school full

time in the fall near the father's house in Fulton County. The

mother also filed a petition to modify the custody order and

sought primary physical custody of the child so she could enroll

the child in school near her house in Pennsylvania. Following a

fact-finding hearing, the court issued an order awarding the

mother sole legal and physical custody of the child and ordered,

among other things, that the father be given parenting time every

other weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m.

during the school year, six weeks during the summer break, the

entire spring break and specific time during Christmas break. 

The father appeals, and we affirm.

The record contains a sound and substantial basis to

support the conclusion that the custody determination was in the

child's best interests.1 "The best interests analysis entails

consideration of such factors as the parents' past performance

and relative fitness, their willingness to foster a positive

relationship between the child and the other parent, as well as

their ability to maintain a stable home environment and provide

for the child's overall well-being" (Matter of Bush v Miller, 136

AD3d 1238, 1239 [2016] [internal quotation marks and citations

omitted]).

Evidence was introduced at the hearing establishing that

the mother has a stable job, in which she sometimes worked from

home, and a home where the child has his own room. In contrast,

the father was attempting to start his own business and had just

received a 60-day notice of eviction in regard to his residence. 

Despite knowing about the pending eviction for three months, the

father acknowledged that he did not have a post-eviction plan for

long-term housing. While both parents admitted that their

communication with one another was poor, evidence established

1 The father concedes that a change in circumstances

existed that warranted consideration of the child's best

interests (see generally Matter of Bush v Miller, 136 AD3d 1238,

1239 [2016]).
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that the communication problems were primarily the fault of the

father. For example, the father acknowledged that during

exchanges of the child, he kept his head down and did not speak

to the mother. In contrast, the mother testified to her efforts

to communicate with the father regarding the child. 

The evidence of the parties' ongoing conflicts and

inability to communicate regarding the child supports the

determination that joint legal custody is not feasible and that

the mother should be awarded sole legal custody (see Matter of

Rutland v O'Brien, 143 AD3d 1060, 1062 [2016]; Bowman v

Engelhart, 112 AD3d 1187, 1188 [2013]). Further, deferring to

Family Court's credibility determinations, the evidence

establishing that the mother was better able to provide a stable

living environment for the child and would better foster a

relationship with the other parent provides a sound and

substantial basis to support the physical custody determination

(see Matter of Sonley v Sonley, 115 AD3d 1071, 1073 [2014];

Matter of Melody M. v Robert M., 103 AD3d 932, 934 [2013], lv

denied 21 NY3d 859 [2013]).

Finally, the father's contention that he received

ineffective assistance of counsel is without merit. The father's

assertion that counsel was unfamiliar with the underlying facts

of the case because she pursued lines of questioning that Family

Court already had knowledge of due to prior proceedings is

speculative, and otherwise such questioning does not fall outside

of a legitimate trial strategy (see Matter of Destiny C. [Goliath

C.], 127 AD3d 1510, 1514 [2015], lvs denied 25 NY3d 911 [2015]). 

Moreover, a review of counsel's efforts in introducing evidence,

making appropriate objections that were often successful and

engaging in appropriate cross-examination of the mother establish

that the father received meaningful representation (see Matter of

Knight v Knight, 92 AD3d 1090, 1093 [2012]; Matter of Rosi v

Moon, 84 AD3d 1445, 1447 [2011]).

Lynch, Rose, Clark and Aarons, JJ., concur.
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ORDERED that the amended order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court