Opinion
261 CAF 18–01124
03-13-2020
In the Matter of Maurice A. GILBERT, Petitioner–Respondent, v. Natashka M. NUNEZ–MERCED, Respondent–Appellant. Matter of Natashka M. Nunez–Merced, Petitioner–Appellant, v. Maurice A. Gilbert, Respondent–Respondent.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR RESPONDENT–APPELLANT AND PETITIONER–APPELLANT. MAURICE A. GILBERT, PETITIONER–RESPONDENT AND RESPONDENT–RESPONDENT PRO SE. SUSAN B. MARRIS, MANLIUS, ATTORNEY FOR THE CHILD.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR RESPONDENT–APPELLANT AND PETITIONER–APPELLANT.
MAURICE A. GILBERT, PETITIONER–RESPONDENT AND RESPONDENT–RESPONDENT PRO SE.
SUSAN B. MARRIS, MANLIUS, ATTORNEY FOR THE CHILD.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent-petitioner mother appeals from an order that, inter alia, awarded petitioner-respondent father sole legal and residential custody of the subject child. We reject the mother's contention that Family Court's custody determination lacks a sound and substantial basis in the record. In making an initial custody determination, the court is "required to consider the best interests of the child by reviewing such factors as maintaining stability for the child, ... the home environment with each parent, each parent's past performance, relative fitness, ability to guide and provide for the child's overall well-being, and the willingness of each parent to foster a relationship with the other parent" ( Matter of Buckley v. Kleinahans, 162 AD3d 1561, 1562, 78 N.Y.S.3d 569 [4th Dept. 2018] [internal quotation marks omitted] ). We agree with the court that those factors weigh in the father's favor, particularly in light of the mother's efforts to interfere with the father's contact with the child, and thus the record supports the court's determination that it is in the child's best interests to award sole custody to the father (see Matter of Athoe v. Goodman, 170 AD3d 1532, 1533, 94 N.Y.S.3d 528 [4th Dept. 2019] ).
Contrary to the mother's contention, the record establishes that the father "is an active and capable parent notwithstanding his work schedule" ( Matter of Owens v. Pound, 145 AD3d 1643, 1645, 44 N.Y.S.3d 318 [4th Dept. 2016], lv denied 29 N.Y.3d 902, 2017 WL 1137505 [2017] ). Furthermore, it is well settled that "a more fit parent will not be deprived of custody simply because the parent assigns day-care responsibilities to a relative owing to work obligations" ( Matter of Chyreck v. Swift, 144 AD3d 1517, 1518, 40 N.Y.S.3d 849 [4th Dept. 2016] ; see Hendrickson v. Hendrickson, 147 A.D.3d 1522, 1523, 47 N.Y.S.3d 623 [4th Dept. 2017] ).