Opinion
12-23-2016
In the Matter of Miriam M. OWENS, Petitioner–Appellant, v. Richard G. POUND, Jr., Respondent–Respondent. In the Matter of Richard G. Pound, Jr., Petitioner–Respondent, v. Miriam M. Owens, Respondent–Appellant.
Davison Law Office PLLC, Canandaigua (Mary P. Davison of Counsel), for Petitioner–Appellant and Respondent–Appellant. Chaffee & Linder, PLLC, Bath (Ruth A. Chaffee of Counsel), for Respondent–Respondent and Petitioner–Respondent. Patricio Jimenez, Attorney for the Child, Hammondsport.
Davison Law Office PLLC, Canandaigua (Mary P. Davison of Counsel), for Petitioner–Appellant and Respondent–Appellant.
Chaffee & Linder, PLLC, Bath (Ruth A. Chaffee of Counsel), for Respondent–Respondent and Petitioner–Respondent.
Patricio Jimenez, Attorney for the Child, Hammondsport.
PRESENT: WHALEN, P.J., SMITH, CARNI, DeJOSEPH, AND CURRAN, JJ.
MEMORANDUM:In these proceedings pursuant to Family Court Act article 6, petitioner-respondent mother appeals from an order, entered after a hearing, awarding the parties joint custody of the subject child, who was born in 2010, with primary physical placement to respondent-petitioner father and visitation to the mother. Contrary to the mother's contention, there is a sound and substantial basis in the record for Family Court's determination that primary physical placement with the father is in the child's best interests (see Matter of Baxter
v. Borden, 122 A.D.3d 1417, 1418, 998 N.Y.S.2d 541, lv. denied 24 N.Y.3d 915, 2015 WL 649304 ; see generally Eschbach v. Eschbach, 56 N.Y.2d 167, 171–174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Chilbert v. Soler, 77 A.D.3d 1405, 1406, 907 N.Y.S.2d 757, lv. denied 16 N.Y.3d 701, 2011 WL 67515 ). The fact that the mother was the child's primary caretaker prior to the parties' separation is not determinative, and the record establishes that "the child is comfortable in both homes" and has strong relationships with members of her extended family who live with the father, i.e., her paternal grandparents and a cousin also born in 2010 (Matter of Howell v. Lovell, 103 A.D.3d 1229, 1232, 960 N.Y.S.2d 278 ; see Matter of Ray v. Eastman, 117 A.D.3d 1114, 1114–1115, 984 N.Y.S.2d 645 ; Matter of Oravec v. Oravec, 89 A.D.3d 1475, 1475–1476, 932 N.Y.S.2d 655 ). In addition, the hearing evidence, including evidence that the mother moved more than an hour away from the father's home with the child when the parties separated and denied the father access to the child for over a month, supports the court's finding that the father is the more willing of the parties to foster the other parent's relationship with the child (see Matter of Saunders v. Stull, 133 A.D.3d 1383, 1384, 20 N.Y.S.3d 824 ; see generally Hill v. Dean, 135 A.D.3d 990, 993–994, 23 N.Y.S.3d 401 ).
We reject the mother's contention that the award of primary physical placement to the father is in effect an award of custody to the paternal grandmother (see Matter of Francisco v. Francisco, 298 A.D.2d 925, 926, 748 N.Y.S.2d 72, lv. denied 99 N.Y.2d 504, 755 N.Y.S.2d 711, 785 N.E.2d 733 ). Although the father works as a truck driver and has a demanding schedule, the record establishes that he returns home each day, usually by 5:30 p.m., and that he takes care of the child himself whenever he is at home, thereby demonstrating that he is an active and capable parent notwithstanding his work schedule (see Matter of Moreau v. Sirles, 268 A.D.2d 811, 812–813, 701 N.Y.S.2d 745 ; see also Matter of Chyreck v. Swift, 144 A.D.3d 1517, 1518, 40 N.Y.S.3d 849 ; Francisco, 298 A.D.2d at 926, 748 N.Y.S.2d 72 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.