Opinion
2012-12-21
In the Matter of Scott T. SWINSON, Petitioner–Respondent, v. Star DOBSON, Respondent–Appellant.
D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth deV. Moeller of Counsel), for Respondent–Appellant. Amdursky, Pelky, Fennell & Wallen, P.C., Oswego (Courtney S. Radick of Counsel), for Petitioner–Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth deV. Moeller of Counsel), for Respondent–Appellant. Amdursky, Pelky, Fennell & Wallen, P.C., Oswego (Courtney S. Radick of Counsel), for Petitioner–Respondent.
Charles H. Cieszeski, Attorney for the Child, Fulton, for Jordan S.
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND VALENTINO, JJ.
MEMORANDUM:
Respondent mother appeals from an order that, following a hearing, granted the petition seeking to modify the custody provisions of a stipulated order and awarded primary physical custody of the parties' child to petitioner father and visitation to the mother. Contrary to the mother's contention, we conclude that Family Court's best interests determination is supported by a sound and substantial basis in the record and that the court did not abuse its discretion in awarding primary physical custody to the father ( see generally Eschbach v. Eschbach, 56 N.Y.2d 167, 173–174, 451 N.Y.S.2d 658, 436 N.E.2d 1260;Matter of Misty D.B. v. David M.S., 38 A.D.3d 1317, 1317, 834 N.Y.S.2d 756;Matter of Green v. Mitchell, 266 A.D.2d 884, 884, 697 N.Y.S.2d 899). Although the court noted some concern about the mother's unstable work schedule and its resultant effect on the child, the court was not thereby giving the mother “a Hobson's choice between livelihood and parenthood” ( Linda R. v. Richard E., 162 A.D.2d 48, 55, 561 N.Y.S.2d 29). Rather, the court paid particular attention to the express wishes of the child and the realities of each parent's home environment. The court addressed all of the appropriate factors before determining that the father should be awarded primary physical custody ( see Fox v. Fox, 177 A.D.2d 209, 210, 582 N.Y.S.2d 863), and we afford the court's determination “great deference” ( Green, 266 A.D.2d at 884, 697 N.Y.S.2d 899).
The mother further contends that the Attorney for the Child (AFC) should have substituted his own judgment for that of the child. The mother failed to preserve for our review that contention concerning the AFC's representation inasmuch as she made no motion to remove the AFC ( see Matter of Juliet M., 16 A.D.3d 211, 212, 790 N.Y.S.2d 668). In any event, the mother's contention lacks merit. “An [AFC] must ‘zealously advocate the child's position’ ... and, if the child is ‘capable of knowing, voluntary and considered judgment,’ must follow the child's wishes ‘even if the attorney for the child believes that what the child wants is not in the child's best interests' ” (Matter of Gloria DD. [Brenda DD.], 99 A.D.3d 1044, 1046, 952 N.Y.S.2d 785, quoting 22 NYCRR 7.2[d][2]; see Matter of Mark T. v. Joyanna U., 64 A.D.3d 1092, 1093–1094, 882 N.Y.S.2d 773). There are only two circumstances in which an AFC is authorized to substitute his or her own judgment for that of the child: “[w]hen the [AFC] is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child's wishes is likely to result in a substantial risk of imminent, serious harm to the child” (22 NYCRR 7.2[d][3]; see Mark T., 64 A.D.3d at 1094, 882 N.Y.S.2d 773). Neither exception is implicated in this matter ( cf. Matter of Alyson J. [Laurie J.], 88 A.D.3d 1201, 1203, 931 N.Y.S.2d 741,lv. denied18 N.Y.3d 803, 2012 WL 44346). We thus conclude that the AFC properly advocated for the wishes of his client.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.