Opinion
10-19-2016
In the Matter of Shavine WILSON, petitioner-respondent, v. Darren BRYANT, respondent-appellant; Treanna W., nonparty-appellant. (Proceeding No. 1) In the Matter of Darren Bryant, petitioner-appellant, v. Shavine Wilson, respondent-respondent; Treanna W., nonparty-appellant. (Proceeding No. 2).
Darren Bryant, New York, N.Y., respondent-appellant pro se in Proceeding No. 1 and petitioner-appellant pro se in Proceeding No. 2. Karen P. Simmons, Brooklyn, N.Y. (Susan M. Cordaro and Janet Neustaetter of counsel), attorney for the child, nonparty-appellant Treanna W.
Darren Bryant, New York, N.Y., respondent-appellant pro se in Proceeding No. 1 and petitioner-appellant pro se in Proceeding No. 2.
Karen P. Simmons, Brooklyn, N.Y. (Susan M. Cordaro and Janet Neustaetter of counsel), attorney for the child, nonparty-appellant Treanna W.
MARK C. DILLON, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, and FRANCESCA E. CONNOLLY, JJ.
Appeal by the father and separate appeal by the child Treanna W. from an order of the Family Court, Kings County (Adam Silvera, J.), dated March 16, 2015. The order, insofar as appealed from, after a hearing, granted that branch of the mother's petition which was for sole legal and physical custody of the child Treanna W. and denied the father's petition for sole legal and physical custody of that child.
ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, the father's petition for sole legal and physical custody of the child Treanna W. is granted, that branch of the mother's petition which was for sole legal and physical custody of that child is denied, and the matter is remitted to the Family Court, Kings County, to establish an appropriate visitation schedule for the mother.
The parties, who were never married, are the parents of two children, a son and a daughter, Treanna W. The parties lived together with the children from approximately 1998 until 2010, when they were evicted from their apartment. The father and the son moved into the paternal grandmother's residence, and the mother and the daughter moved into a shelter. In September 2010, the mother filed a petition for sole legal and physical custody of both children. In December 2010, the father filed a petition for sole legal and physical custody of the son. In April 2012, the father filed a separate petition for sole legal and physical custody of the daughter. Following a hearing, the Family Court awarded sole legal and physical custody of the daughter to the mother, with specified visitation to the father, and awarded sole legal and physical custody of the son to the father, with specified visitation to the mother. On their separate appeals, the father and the daughter contend that the court should have awarded sole legal and physical custody of the daughter to the father.
“ ‘The court's paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child’ ” (Matter of Gooler v. Gooler, 107 A.D.3d 712, 712, 966 N.Y.S.2d 208, quoting Matter of Julie v. Wills, 73 A.D.3d 777, 777, 899 N.Y.S.2d 669 ; see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). In determining an initial petition for child custody, the totality of the circumstances includes, but is not limited to, “ ‘(1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent's relative fitness, including his or her ability to guide the child, provide for the child's overall well being, and foster the child's relationship with the noncustodial parent; and (5) the child's desires' ” (Matter of McPherson v. McPherson, 139 A.D.3d 953, 954, 30 N.Y.S.3d 705, quoting Matter of Supangkat v. Torres, 101 A.D.3d 889, 890, 954 N.Y.S.2d 915 ). In custody disputes, the value of forensic evaluations has long been recognized (see Matter of Van Dunk v. Bonilla, 100 A.D.3d 1008, 955 N.Y.S.2d 150 ), “and the opinions of forensic experts should ‘not be readily set aside’ unless contradicted by the record” (Matter of Volpe v. Volpe, 61 A.D.3d 691, 692, 878 N.Y.S.2d 72, quoting Bains v. Bains, 308 A.D.2d 557, 558, 764 N.Y.S.2d 721 ; see Matter of Baptiste v. Gregoire, 140 A.D.3d 746, 33 N.Y.S.3d 342 ). “Although the credibility determination of the hearing court, which saw and heard the witnesses, is entitled to great deference, its custody determination will not be upheld where it lacks a sound and substantial basis in the record” (Matter of Moore v. Gonzalez, 134 A.D.3d 718, 720, 21 N.Y.S.3d 292 ).
Here, the Family Court's award of custody of the daughter to the mother lacked a sound and substantial basis in the record. The court explained some of its reasoning for disregarding the court-appointed forensic evaluator's recommendation, including that there was an insufficient basis in the record to find that the sleeping arrangements in the father's home were more suitable than the sleeping arrangements in the mother's home. However, there was evidence in the record sufficient to support the forensic evaluator's opinion that custody of the daughter should be awarded to the father (see Matter of Doyle v. Debe, 120 A.D.3d 676, 991 N.Y.S.2d 135 ; Miller v. Pipia, 297 A.D.2d 362, 746 N.Y.S.2d 729 ). Further, the court failed to give sufficient weight to some of the mother's actions that undermined her ability to provide appropriate parental guidance, including engaging in a physical altercation with the father's girlfriend in front of the children. The court's finding that the mother demonstrated an ability to provide the daughter with the support necessary for her educational development was not supported by the record (see Matter of Menhennett v. Bixby, 132 A.D.3d 1177, 1179, 18 N.Y.S.3d 475 ; Matter of Reyes v. Gill, 119 A.D.3d 804, 805, 989 N.Y.S.2d 139 ; Matter of Farran v. Fenner, 94 A.D.3d 1116, 1117, 943 N.Y.S.2d 173 ; Matter of Gasparro v. Edwards, 85 A.D.3d 1222, 1223, 925 N.Y.S.2d 206 ). The mother failed to acknowledge or address the daughter's overall poor grades in school, and while the daughter's excessive school latenesses had improved, the mother provided no explanation for the daughter's continued periodic lateness. In contrast, the father demonstrated a greater ability and willingness to both anticipate and provide for the daughter's social and intellectual needs (see Matter of Moore v. Gonzalez, 134 A.D.3d 718, 720, 21 N.Y.S.3d 292 ; Matter of Soto v. Cruz, 119 A.D.3d 592, 594, 989 N.Y.S.2d 129 ; Matter of Riccio v. Riccio, 21 A.D.3d 1107, 1108, 803 N.Y.S.2d 603 ; Matter of Ortiz v. Maharaj, 8 A.D.3d 574, 779 N.Y.S.2d 220 ). The forensic evaluator's opinion that the father would foster a healthier relationship between the daughter and the mother than the mother would foster between the daughter and the father is also supported by the record (see Matter of Pappas v. Kells, 77 A.D.3d 952, 909 N.Y.S.2d 157 ). In addition, the court failed to give sufficient weight to the fact that awarding the mother custody of the daughter separated her from her older brother, with whom she had a good relationship, and with whom she had lived during the first few years of her life (see Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Soto v. Cruz, 119 A.D.3d at 594, 989 N.Y.S.2d 129 ; Matter of Caruso v. Cruz, 114 A.D.3d 769, 773, 980 N.Y.S.2d 137 ).Accordingly, the Family Court should have granted the father's petition for sole legal and physical custody of the daughter, and should have denied that branch of the mother's petition which was for sole legal and physical custody of the daughter.