Opinion
2013-11-15
In the Matter of Rachel LAWSON, Petitioner–Respondent, v. Ritchel LAWSON, Respondent–Appellant.
Appeal from an order of the Family Court, Monroe County (Thomas W. Polito, R.), entered November 3, 2011 in a proceeding pursuant to Family Court Act article 6. The order, inter alia, awarded petitioner sole custody and primary physical residence of the parties' children. The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of Counsel), for Respondent–Appellant. Timothy P. Donaher, Public Defender, Rochester (Kimberly Duguay of Counsel), for Petitioner–Respondent.
Appeal from an order of the Family Court, Monroe County (Thomas W. Polito, R.), entered November 3, 2011 in a proceeding pursuant to Family Court Act article 6. The order, inter alia, awarded petitioner sole custody and primary physical residence of the parties' children.
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of Counsel), for Respondent–Appellant. Timothy P. Donaher, Public Defender, Rochester (Kimberly Duguay of Counsel), for Petitioner–Respondent.
Tanya J. Conley, Attorney for the Children, Rochester.
MEMORANDUM:
In this custody proceeding pursuant to article 6 of the Family Court Act, respondent father appeals from an order modifying a prior custody order by, inter alia, awarding sole custody and primary physical residence of the parties' children to petitioner mother. We reject the father's contention that Family Court placed undue emphasis upon evidence of his private immoral conduct. The record establishes that the court did not consider the moral implications of the father's extramarital relationship. Instead, the court carefully considered that evidence only in evaluating the father's history of impulsiveness and his inability to put the needs of the children before his own ( see Matter of Adriano D. v. Yolanda A., 94 A.D.3d 448, 449, 941 N.Y.S.2d 150;Matter of Galanos v. Galanos, 28 A.D.3d 554, 555, 816 N.Y.S.2d 90,lv. denied 7 N.Y.3d 711, 823 N.Y.S.2d 770, 857 N.E.2d 65;Granata v. Granata, 289 A.D.2d 527, 528, 735 N.Y.S.2d 622). Indeed, the court properly determined that evidence of the father's infidelity or sexual indiscretions was not relevant except in those contexts ( see Sitts v. Sitts, 74 A.D.3d 1722, 1723, 902 N.Y.S.2d 274,lv. dismissed15 N.Y.3d 833, 909 N.Y.S.2d 8, 935 N.E.2d 799,lv. denied 18 N.Y.3d 801, 2011 WL 6155555). Contrary to the father's further contention, there is a sound *855and substantial basis in the record to support the court's determination that it was in the children's best interests to award sole custody to the mother, and thus we will not disturb that determination ( see Matter of Tisdale v. Anderson, 100 A.D.3d 1517, 1517–1518, 955 N.Y.S.2d 708;Capodiferro v. Capodiferro, 77 A.D.3d 1449, 1450, 908 N.Y.S.2d 492). Finally, contrary to the father's contention, the court did not deny him visitation on the Thanksgiving and Christmas holidays. In addition to visitation during the children's February and April school vacations and the majority of their summer vacation, the court awarded the father “reasonable [visitation] time with the children whenever he travels to the children's residence during their periods of residence with the [mother].” Thus, the order provides the father with an opportunity for visitation on the holidays in question. In the event that the mother frustrates the father's exercise of such visitation, his remedy is to file a violation petition.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.