                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 18, 2016                    519919
_________________________________

In the Matter of CHRISTOPHER
   LAWTON,
                    Respondent,
      v
                                             MEMORANDUM AND ORDER
CHRISTINA LAWTON,
                     Appellant.

(And Another Related Proceeding.)
_________________________________


Calendar Date:   January 12, 2016

Before:   Peters, P.J., McCarthy, Rose and Lynch, JJ.

                              __________


     Thomas F. Garner, Middleburgh, for appellant.

     John C. Iseman, Quaker Street, attorney for the children.

                              __________


Lynch, J.

      Appeal from an order of the Family Court of Schoharie
County (Bartlett III, J.), entered October 8, 2014, which, among
other things, partially granted petitioner's application, in a
proceeding pursuant to Family Ct Act article 6, for custody of
the parties' children.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the parents of two children (born in
2005 and 2006). Although married, they have been separated since
2011. In accordance with a verbal agreement, the mother had
primary physical custody of the children and the father had
parenting time with them every other weekend. In March 2013, the
Schoharie County Department of Social Services (hereinafter DSS)
                              -2-                519919

filed a neglect petition against the mother for allowing her 16-
year-old daughter – who is unrelated to the father – to have sex
with the 22-year-old son of the mother's boyfriend. In November
2013, the mother consented to a fact-finding order wherein the
16-year-old child and the children were adjudicated as neglected.
Despite the adjudication, the custodial arrangement between the
parties continued. In March 2014, the father filed a temporary
emergency custody petition based on his claim that the mother was
unemployed and living in a hotel with the children. In April
2014, DSS filed a second neglect petition against the mother for
allowing another daughter – a 15 year old also unrelated to the
father – to spend weekends overnight and engage in a sexual
relationship with that daughter's 16-year-old boyfriend. After a
number of appearances and after the mother filed a petition
seeking custody, a fact-finding hearing began in July 2014.
After hearing testimony from the father, his fiancée and the
mother and after a Lincoln hearing, Family Court granted joint
legal custody to the parties, primary physical custody to the
father and parenting time to the mother every weekend and on
Wednesdays after school. The mother now appeals.

      The focus in an initial custody determination is the best
interests of the children, which involves consideration of
factors including "the parents' past performance and relative
fitness, their willingness to foster a positive relationship
between the child[ren] and the other parent, as well as their
ability to maintain a stable home environment and provide for the
child[ren]'s overall well-being" (Matter of Adams v Morris, 111
AD3d 1069, 1069-1070 [2013]; accord Matter of Daniel TT. v Diana
TT., 127 AD3d 1514, 1514-1515 [2015]; Matter of Jarren S. v
Shaming T., 117 AD3d 1109, 1110 [2014]). The children's wishes
should be considered but are not dispositive (see Rumpff v
Schorpp, 133 AD3d 1109, 1113 [2015]; Matter of Rivera v LaSalle,
84 AD3d 1436, 1438 [2011]). Because Family Court has the best
ability to assess the witnesses' demeanor and credibility, we
will not disturb a custody determination unless it lacks a sound
and substantial basis in the record (see Matter of Daniel TT. v
Diana TT., 127 AD3d at 1515; Matter of Kayla Y. v Peter Z., 125
AD3d 1126, 1127 [2015]).
                              -3-                519919

      Here, as Family Court noted, the mother had been the
children's primary caregiver, but the father had taken on a more
active role since the neglect adjudication. Further, the record
indicates that, although the mother had found a job and an
apartment by the time of the fact-finding hearing, she was
unemployed and living with the children in a hotel when the
father filed his petition. By comparison, the father testified
that he had been working at the same job for nearly six years and
had been living in the same apartment with his fiancée for nearly
two years. He testified that the children were sharing a room,
but that he was looking into purchasing a home to provide more
space for the children and the 10-month-old child that he had
with his fiancée.

      We are not persuaded by the mother's argument, joined by
the attorney for the children, that Family Court placed too much
emphasis on the neglect adjudication. The incident underlying
the neglect adjudication reflected a serious lack of judgment – a
point that the mother conceded and was continuing to work to
address (see Matter of Rosetta BB. v Joseph DD., 125 AD3d 1205,
1206 [2015]). Based on the record, we agree with the court's
view that it was faced with the dilemma of "choosing between two
less than perfect household situations." In such a case, it is
particularly important to defer to the court's determination (see
Matter of Windom v Pemberton, 119 AD3d 999, 999 [2014]). Based
on the record as a whole, we conclude that Family Court's
determination to award primary physical custody to the father –
without prejudice to the mother's application for a modification
upon the termination of the second neglect proceeding – has sound
and substantial support in the record.

     Peters, P.J., McCarthy and Rose, JJ., concur.
                        -4-                  519919

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
