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

1118
CAF 12-02128
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.


IN THE MATTER OF RACHEL LAWSON,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

RITCHEL LAWSON, RESPONDENT-APPELLANT.


THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
COUNSEL), FOR RESPONDENT-APPELLANT.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY DUGUAY OF
COUNSEL), FOR PETITIONER-RESPONDENT.

TANYA J. CONLEY, ATTORNEY FOR THE CHILDREN, ROCHESTER.


     Appeal from an order of the Family Court, Monroe County (Thomas
W. Polito, R.), entered November 3, 2011 in a proceeding pursuant to
Family Court Act article 6. The order, inter alia, awarded petitioner
sole custody and primary physical residence of the parties’ children.

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

     Memorandum: In this custody proceeding pursuant to article 6 of
the Family Court Act, respondent father appeals from an order
modifying a prior custody order by, inter alia, awarding sole custody
and primary physical residence of the parties’ children to petitioner
mother. We reject the father’s contention that Family Court placed
undue emphasis upon evidence of his private immoral conduct. The
record establishes that the court did not consider the moral
implications of the father’s extramarital relationship. Instead, the
court carefully considered that evidence only in evaluating the
father’s history of impulsiveness and his inability to put the needs
of the children before his own (see Matter of Adriano D. v Yolanda A.,
94 AD3d 448, 449; Matter of Galanos v Galanos, 28 AD3d 554, 555, lv
denied 7 NY3d 711; Granata v Granata, 289 AD2d 527, 528). Indeed, the
court properly determined that evidence of the father’s infidelity or
sexual indiscretions was not relevant except in those contexts (see
Sitts v Sitts, 74 AD3d 1722, 1723, lv dismissed 15 NY3d 833, lv denied
18 NY3d 801). Contrary to the father’s further contention, there is a
sound and substantial basis in the record to support the court’s
determination that it was in the children’s best interests to award
sole custody to the mother, and thus we will not disturb that
determination (see Matter of Tisdale v Anderson, 100 AD3d 1517, 1517-
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                                                        CAF 12-02128

1518; Capodiferro v Capodiferro, 77 AD3d 1449, 1450). Finally,
contrary to the father’s contention, the court did not deny him
visitation on the Thanksgiving and Christmas holidays. In addition to
visitation during the children’s February and April school vacations
and the majority of their summer vacation, the court awarded the
father “reasonable [visitation] time with the children whenever he
travels to the children’s residence during their periods of residence
with the [mother].” Thus, the order provides the father with an
opportunity for visitation on the holidays in question. In the event
that the mother frustrates the father’s exercise of such visitation,
his remedy is to file a violation petition.




Entered:   November 15, 2013                   Frances E. Cafarell
                                               Clerk of the Court
