                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 16, 2014                    516643
________________________________

In the Matter of DAVID KOCH,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

LORI-ANN KOCH,
                    Appellant.
________________________________


Calendar Date:   September 9, 2014

Before:    Lahtinen, J.P., Rose, Egan Jr., Lynch and Clark, JJ.

                              __________


     Teresa C. Mulliken, Harpersfield, for appellant.

     Andrew H. Van Buren, Hobart, for respondent.

     Larisa Obolensky, Delhi, attorney for the child.

                              __________


Rose, J.

      Appeal from an order of the Family Court of Delaware County
(Becker, J.), entered March 29, 2013, which granted petitioner's
application, in a proceeding pursuant to Family Ct Act article 6,
for custody of the parties' child.

      Petitioner (hereinafter the father) was required to leave
the marital residence he shared with respondent (hereinafter the
mother), their child (born in 2007) and two of the mother's three
children from different relationships after an altercation with
her teenage son. The father thereafter commenced this
proceeding, seeking, among other things, sole custody of the
parties' child. Family Court held a fact-finding hearing and
awarded the father sole custody with scheduled visitation to the
mother. The mother appeals.
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      When making an initial custody determination, a court's
primary concern is "the best interest of the child, and what will
best promote its welfare and happiness" (Eschbach v Eschbach, 56
NY2d 167, 171 [1982] [internal quotation marks and citation
omitted]; see Matter of Alleyne v Cochran, 119 AD3d 1100, 1100
[2014]; Matter of Keen v Stephens, 114 AD3d 1029, 1030 [2014]).
Among the factors to be considered are "maintaining stability for
the child, the child's wishes, the home environment with each
parent, each parent's past performance, relative fitness, ability
to guide and provide for the child's overall well-being, and the
willingness of each parent to foster a relationship with the
other parent" (Matter of Smith v Miller, 4 AD3d 697, 698 [2004];
accord Matter of Jolynn W. v Vincent X., 85 AD3d 1217, 1217
[2011], lv denied 17 NY3d 713 [2011]; see Matter of Keen v
Stephens, 114 AD3d at 1030). We give due deference to Family
Court's ability to observe the witnesses and assess their
credibility, and we will not disturb its determination if it is
supported by a sound and substantial basis in the record (see
Matter of Alleyne v Cochran, 119 AD3d at 1101; Matter of Jarren
S. v Shaming T., 117 AD3d 1109, 1110 [2014]; Matter of Roberta
GG. v Leon HH., 99 AD3d 1057, 1059 [2012]).

      The evidence here established that the father lives with
his mother, has held a steady job for the past 17 years, and has
a network of support to assist him in caring for the child while
he is at work. The father's mother and sister testified as to
the father's close relationship with the child and demonstrated
ability to properly care for him, engage in activities with him
and administer appropriate discipline. In contrast, the father
expressed concern for the child's safety in the mother's care,
mainly due to the mother's lack of supervision and failure to
protect the child from her teenage son. The father, his mother
and his sister also testified that the mother and her 27-year-old
son were antagonistic toward them in front of the child during
visitation exchanges, calling them vulgar names and driving
recklessly. Although there were two indicated reports for
physical violence against the father that occurred while the
family was living together, he established that, since then, he
had been regularly attending anger management counseling sessions
and that there were no further incidents. The criminal charges
filed against the father in connection with the altercation that
                              -3-                516643

resulted in him leaving the marital residence were dismissed, and
the mother acknowledged that the father was never physically
violent toward their child.

      Family Court found the mother's testimony to be fabricated
and discounted the testimony of two of her children that the
father had regularly assaulted them. Both of the mother's
children who testified had previously retracted such claims, and
the mother admitted to having been convicted of forgery in the
third degree for falsifying a document related to child support
payments, claiming that she would "do it again for [her] kids."
Her daughter also admitted that she would lie in court to help
her mother. Further, the mother had moved her children in with
her 27-year-old son, yet she disingenuously claimed that she had
no idea why he had previously been arrested and served a prison
sentence. She also provided a dubious version of events
surrounding the death of a dog left in an apartment that she had
abandoned. In light of this record, we find no basis to disturb
Family Court's credibility determination in favor of the father
(see Matter of Virginia C. v Donald C., 114 AD3d 1032, 1035-1036
[2014]; Matter of Ames v Ames, 97 AD3d 914, 916 [2012], lv denied
20 NY3d 852 [2012]; Matter of Meier v Meier, 79 AD3d 1295, 1296
[2010]).

      Although the mother claims that Family Court was biased
against her for her repeated failure to appear on time for court
proceedings and that the court's bias is reflected in allowing
the father to proceed on custody when he had only checked the box
for visitation on the face of his petition, the contents of the
petition clearly reflected his request for sole custody of the
child. Further, the mother has not alleged any prejudice in the
denial of her request for an adjournment. The award of sole
custody to the father, based on Family Court's determination that
he is able to offer the child a more stable environment and is
willing to foster a relationship between the child and the
mother, is supported by a sound and substantial basis in the
record (see Matter of Jarren S. v Shaming T., 117 AD3d at 1111;
Matter of Keen v Stephens, 114 AD3d at 1031; Matter of Calmeek
MM., 18 AD3d 1053, 1054 [2005]).
                        -4-                  516643

Lahtinen, J.P., Egan Jr., Lynch and Clark, JJ., concur.



ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
