        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

493
CAF 14-00119
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.


IN THE MATTER OF SCOTT J. LAMAY,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

KIMBERLY R. STAVES, RESPONDENT-APPELLANT.
-----------------------------------------
IN THE MATTER OF KIMBERLY R. STAVES,
PETITIONER-APPELLANT,

                    V

SCOTT J. LAMAY, RESPONDENT-RESPONDENT.


DAVIS LAW OFFICE PLLC, OSWEGO (STEPHANIE N. DAVIS OF COUNSEL), FOR
RESPONDENT-APPELLANT AND PETITIONER-APPELLANT.

LINDA M. CAMPBELL, SYRACUSE, FOR PETITIONER-RESPONDENT AND RESPONDENT-
RESPONDENT.

LAURA ESTELA CARDONA, ATTORNEY FOR THE CHILD, SYRACUSE.


     Appeal from an order of the Family Court, Oswego County (Bobette
J. Morin, R.), entered August 9, 2013 in a proceeding pursuant to
Family Court Act article 6. The order, among other things, awarded
Scott J. LaMay sole legal and primary physical custody of the subject
child.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner-respondent father commenced this
proceeding pursuant to article 6 of the Family Court Act, seeking
custody of the subject child, and respondent-petitioner mother filed,
among other pleadings, a competing custody petition. The mother
appeals from an order that, inter alia, awarded sole legal and primary
physical custody of the subject child to the father, granted the
mother final decision-making authority over medical determinations if
the parties are unable to agree, and set a visitation schedule that
divided the parties’ parenting time into specified blocks of time.

     We reject the mother’s contention that Family Court erred in its
custody determination. The parties presented diametrically opposing
testimony concerning each other’s parenting skills, drug use,
                                 -2-                           493
                                                         CAF 14-00119

employment, and acts of domestic violence, and each testified in a
derogatory manner regarding the other. After hearing the testimony
and reviewing the evidence, the court concluded, inter alia, that both
parties’ testimony was “partisan to a fault, unconvincing, lacking in
credibility, and significantly devoid of many details,” but further
concluded that the father was the more stable parent and that the
mother was likely to undermine the subject child’s relationship with
the father. “It is well settled . . . that [a] concerted effort by
one parent to interfere with the other parent’s contact with the child
is so inimical to the best interests of the child . . . as to, per se,
raise a strong probability that [the interfering parent] is unfit to
act as custodial parent” (Matter of Marino v Marino, 90 AD3d 1694,
1695 [internal quotation marks omitted]; see Matter of Howell v
Lovell, 103 AD3d 1229, 1231). Inasmuch as no other factor strongly
favors either party, and the court’s custody determination, which is
“based upon [its] first-hand assessment of the credibility of the
witnesses,” has a sound and substantial basis in the record, we
conclude that it should not be disturbed (Matter of Bryan K.B. v
Destiny S.B., 43 AD3d 1448, 1449 [internal quotation marks omitted]).

     Contrary to the mother’s further contention, the court fully
considered the impact of the evidence concerning acts of domestic
violence by both parties in making its determination (see Domestic
Relations Law § 240 [1] [a]). Indeed, the court concluded that both
parties engaged in “egregious domestic violence,” and we agree with
the court that the best interests of the child are served by awarding
custody to the father notwithstanding his actions (see Matter of Booth
v Booth, 8 AD3d 1104, 1105, lv denied 3 NY3d 607).




Entered:   May 8, 2015                          Frances E. Cafarell
                                                Clerk of the Court
