                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: January 12, 2017                    521939
__________________________________

In the Matter of RITA DEVONE
   MANELL,
                    Respondent,
      v
                                             MEMORANDUM AND ORDER
TIMOTHY MANELL,
                     Appellant.

(And Another Related Proceeding.)
__________________________________


Calendar Date:    November 17, 2016

Before:   Peters, P.J., Garry, Devine, Mulvey and Aarons, JJ.

                              __________


     John Ferrara, Monticello, for appellant.

     Jane M. Bloom, Monticello, for respondent.

     Bruce Perlmutter, Woodridge, attorney for the child.

                              __________


Garry, J.

      Appeal from an order of the Family Court of Sullivan County
(Meddaugh, J.), entered August 13, 2015, which, among other
things, granted petitioner's application, in a proceeding
pursuant to Family Ct Act article 6, for custody of the parties'
child.

      Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the parents of a son (born in 2002).
The parties married in 2002 and resided together until 2014, when
the father vacated the marital residence, where the mother
continues to reside. After the parties' separation, the mother
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commenced a Family Ct Act article 6 proceeding seeking custody of
the child, and the father subsequently commenced a proceeding
seeking the same relief. Following Lincoln and fact-finding
hearings, Family Court awarded the parties joint physical and
legal custody, with weekday physical custody to the mother,
shared holidays and vacations and weekend parenting time for the
father for two out of every three weekends, together with further
weekdays as the parties agree. The father appeals.

      The focus in making an initial custody determination is on
the best interests of the child, involving the consideration of
such factors as "'the parents' relative fitness, past performance
and ability to provide a stable home environment for the child,
as well as each parent's willingness to foster the child's
relationship with the other parent'" (Matter of Greenough v
Imrie, 140 AD3d 1365, 1365 [2016], quoting Matter of Brown v
Akatsu, 125 AD3d 1163, 1164 [2015]). Recognizing Family Court's
"superior position to assess witness credibility and make
findings of fact," this Court will not disturb a decision that is
supported by a sound and substantial basis in the record (Matter
of Southammavong v Sisen, 141 AD3d 905, 906 [2016]; see Matter of
Lawton v Lawton, 136 AD3d 1168, 1169 [2016]).

      The father asserts that the child wishes to live primarily
with him and have weekend parenting time with the mother. The
attorney for the child concurs with the father's position, and
further argues that, significantly, the child's wishes have not
changed in the period since the trial determination. Although
the child's desires are considered as part of the best interests
analysis, they are "but one factor to be considered . . . [and]
should not be considered determinative," and "the potential for
influence having been exerted on the child" must also be
considered (Eschbach v Eschbach, 56 NY2d 167, 173 [1982]; see
Matter of Benjamin v Lemasters, 125 AD3d 1144, 1147 [2015]).
Here, we note that the father's testimony reveals that he spoke
to the child on at least four separate occasions regarding with
whom he wanted to live. Contrary to the father's argument, we
find that Family Court's decision reveals that it considered the
child's wishes as part of its best interests analysis, although
the request was not granted (see Matter of Rivera v LaSalle, 84
AD3d 1436, 1438 [2011]; Matter of Rutland v O'Brien, 143 AD3d
                              -3-                521939

1060, 1062 [2016]).

      Family Court found both parties to be fit and loving
parents who are able to provide stable homes and cooperate
regarding visitation and the child's needs and activities. The
teenage child resides with the mother in his childhood home and
continues to attend the same school that he has attended since
pre-kindergarten. The child has regular contact with certain
members of the mother's family who are her immediate neighbors.
The father resides with the child's paternal grandparents, who
have indicated that the father and the child may live at their
residence as long as is necessary. The mother works part time
and provides for someone else to be present for the child when
necessary. The father works full time, but does not work on the
weekends during his parenting time, and the child's grandparents
are otherwise available to watch the child. Assistance with
schoolwork and facilitation of the child's extracurricular
activities are provided by both parents.

      Family Court acknowledged the mother's history of
alcoholism and found the mother's undisputed sobriety since
November 2012 to be a laudable achievement. Regarding the
mother's allegations of domestic violence, the court credited
certain testimony by the father in concluding that the incidents
did not result in any basis for finding him unfit for providing
adequate moral guidance, and further found that these incidents
had occurred solely in the past, prior to the parties'
separation. In the absence of further altercations after the
parties' separation, the record supports the finding that these
incidents do not currently affect the best interests of the
child.

      Family Court found, and the record supports, that "the best
interests of [the] child[] are served by a continuing
relationship with both parents" (Matter of Bennett v Bennett, 208
AD2d 1042, 1042 [1994]; see Weiss v Weiss, 52 NY2d 170, 175
[1981]). In rendering the determination, the court specifically
found that the mother has been "extremely cooperative" with the
father, and "has not refused any requests for him to spend
additional time with" the child. The testimony of both parties
indicates that the mother has been the child's primary caretaker,
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whereas the father frequently participates in hunting and other
outdoor activities with the child – activities which Family Court
found to be an "integral part of [the child's] identity." The
mother testified that she only occasionally participates in
outdoor activities with the child. In light of the parties'
distinct roles in their child's life, we cannot find that the
determination failed to balance the time shared with the two
parents in an appropriate manner. Family Court's order
acknowledged the child's history of outdoor activities with the
father, while also recognizing a need to "ensure that the
mother's relationship with the child will be promoted and
preserved." Under these circumstances, we find the award of
primary weekday custody to the mother with substantial weekend
parenting time to the father to be supported by a sound and
substantial basis in the record, and we will not disturb it (see
Matter of Lawton v Lawton, 136 AD3d at 1169; Matter of Holland v
Klingbeil, 118 AD3d 1077, 1079 [2014]; Matter of Gordon v
Richards, 103 AD3d 929, 931 [2013]).1

        Peters, P.J., Devine, Mulvey and Aarons, JJ., concur.


        ORDERED that the order is affirmed, without costs.




                               ENTER:




                               Robert D. Mayberger
                               Clerk of the Court


    1
        At oral argument, the father withdrew his further
contention that the child's statements in the Lincoln hearing
should be given evidentiary value (see Matter of Heasley v Morse,
144 AD3d 1405, 1408 [2016]; Matter of Christine TT. v Dino UU.,
143 AD3d 1065, 1068 [2016]).
