                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 17, 2015                   519869
______________________________________

In the Matter of LILLY NN.,
                    Respondent,
      v
                                            MEMORANDUM AND ORDER
JERRY OO.,
                    Appellant.

(And Three Other Related Proceedings.)
______________________________________


Calendar Date:   October 15, 2015

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

                             __________


     Monique B. McBride, Albany, for appellant.

      Cowen Law Firm, Sidney (Sarah E. Cowen of counsel), for
respondent.

     Susan B. McNeil, Ithaca, attorney for the children.

                             __________


Clark, J.

      Appeal from an order of the Family Court of Delaware County
(Becker, J.), entered September 18, 2014, which granted
petitioner's application, in a proceeding pursuant to Family Ct
Act article 6, for custody of the parties' children.

      Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the unmarried parents of two sons
(born in 2002 and 2004). The mother owns and operates a
restaurant and employed the father during their 12-year
relationship, which ended in 2013. At that time, the father
moved out of the family residence and found new employment.
                               -2-                519869

      In March 2013, the mother commenced the first of the
instant proceedings seeking an order of custody, and, in May
2013, Family Court issued a temporary order of custody and
visitation, granting joint legal custody, with residential
custody to the mother and parenting time to the father "as the
parties may agree." The father subsequently filed a petition
seeking enforcement of the temporary order, alleging that the
mother was not allowing him access to the children and that the
children were being neglected. The mother in turn filed a
petition seeking sole custody and alleged the father's new home
was unfit for the children.1 Finally, the father filed a
petition for modification of the temporary order, as well as a
petition seeking full custody.

      Over the summer of 2013, the temporary order was revised
twice, the first revision was at the prompting of the attorney
for the children who communicated the children's wishes to spend
more time with their father. Following court-ordered home
studies, drug testing, mental health and substance abuse
evaluations and a multi-day trial, Family Court awarded sole
legal custody of the children to the mother and visitation to the
father. The father now appeals.

      A court's primary concern in an initial custody
determination is the best interests of the children (see Eschbach
v Eschbach, 56 NY2d 167, 171 [1982]; Matter of Kayla Y. v Peter
Z., 125 AD3d 1126, 1127 [2015]). This determination is made "by
reviewing such factors as maintaining stability for the
child[ren], the child[ren's] wishes, the home environment with
each parent, each parent's past performance, relative fitness,
ability to guide and provide for the child[ren's] overall
well-being, and the willingness of each parent to foster a
relationship with the other parent" (Matter of Jolynn W. v
Vincent X., 85 AD3d 1217, 1217 [2011], lv denied 17 NY3d 713
[2011] [internal quotation marks and citations omitted]; see


     1
        The mother also filed a family offense petition alleging
that the father harassed her at her business. However, no
testimony was offered at trial to support this petition and it
was dismissed.
                              -3-                519869

Matter of Kayla Y. v Peter Z., 125 AD3d at 1127). "Given Family
Court's superior ability to observe and assess the witnesses'
testimony and demeanor firsthand, its factual findings and
credibility determinations — if supported by sound and
substantial evidence — will not be disturbed" (Matter of DiMele v
Hosie, 118 AD3d 1176, 1177 [2014] [citations omitted]).

      At the fact-finding hearing, the parties both testified to
a history of co-parenting their children. The father regularly
fed the children, helped them with their schoolwork, communicated
with the children's teachers, took them to medical appointments
and cared for them in their daily needs. The mother provided
shelter and insurance for the children and regularly picked the
children up from their after-school program, took them to her
restaurant and fed them dinner. Furthermore, the court-ordered
evaluations indicated that both parents were fit and could
provide safe and appropriate homes for the children. Drug
testing of each of the parties revealed negative results for the
father and a result for the mother that aligned with her
prescribed medication. The father's substance abuse evaluation
indicated no substance abuse and no treatment was recommended.
Moreover, the court-ordered mental health evaluation described
both parents as "possess[ing] positive parental attributes from
which their children can benefit" and observed that their
difficulties did not seem to be "negatively impacting each
party's parenting abilities or capacity to co-parent." Both
evaluations recommended a joint custodial arrangement.

      Family Court's primary focus was on certain emotional and
academic issues concerning the older child. Specifically, in
January 2014, the older child was involved in an incident in
which he, while unsupervised at his mother's home, shot another
child with a pellet gun, causing injury. Additionally, the older
child had a history of aggression toward animals, which the
mother attributed to the father taking the children hunting and
trapping at a young age. However, at the time of trial, the
father had refrained from taking the children trapping for a
period of at least two years in an effort to comply with an
earlier recommendation from child protective services. As a
result of the January 2014 incident, the mother was the subject
of an investigation by child protective services that was
                               -4-                519869

"indicated" and the child was placed on probation and began
counseling. At the time of trial, the child had attended eight
therapy sessions, all of which the mother had attended and none
of which the father had attended. While crediting the father's
testimony that he had made an effort to become more involved in
the child's counseling, Family Court found his level of effort to
be inadequate and determined that the mother was the parent more
capable to deal with the behaviors of the older child to the
extent that she expressed more concern and was the one to arrange
and attend counseling with the older child. On this point, we
disagree.

      In our view, it is significant that the most alarming
incidents of concerning behavior on the part of the older child
occurred at the mother's house when the child was using a gun
unsupervised. The mother, who had no training in gun use and
testified to having misgivings about whether use of the pellet
gun should be allowed at all, nonetheless left the child
unsupervised with the weapon.2 Conversely, the father – who
admittedly desires to raise his children in the hunting and
trapping "way of life," teaching them to raise animals for food –
does not permit his children to use guns unsupervised and
attempts to educate them in safety and proper usage. Also of
importance is the father's testimony that he would consider
refraining from hunting with his older child if advised by a
professional to do so. In this regard, we see the mother's
conduct with respect to the father's attendance at counseling to
be somewhat exclusionary to the extent that she did not
immediately inform the father that the child was starting
counseling and initially told the father that he could not attend
unless he paid for a portion of the session.

      We likewise disagree with Family Court's assessment that
the mother was in a better position to support the children
academically because of her proximity to the children's school.
Rather, the record shows that, like the mother, the father spends
time on a regular basis helping with homework, understands his


     2
        The pellet gun in question was given to the child by a
friend of the mother.
                              -5-                519869

own strengths and weaknesses as a tutor, on a practical level
knows the workflow of assignments and communicates sufficiently
with the guidance counselor and the older child's primary
teacher.

      Additionally, we find error in Family Court's determination
to not consider the wishes of the children. In this regard,
Family Court found that both parents had attempted to improperly
influence their children's wishes regarding custody, thereby
"cancelling out" the children's preferences. While there is a
basis in the record to show that the mother attempted to
influence the children, there is no testimony that demonstrates a
similar attempt by the father. Thus, in light of the children's
"ability to articulate [their] preferences as reflected in the
Lincoln hearing3 transcript," at minimum, the unequivocal
expression of preferences are "'entitled to consideration'"
(Matter of Rivera v LaSalle, 84 AD3d 1436, 1439 [2011], quoting
Matter of Lowe v O'Brien, 81 AD3d 1093, 1096 [2011], lv denied 16
NY3d 713 [2011]).

      Thus, considering the record before us as a whole, we find
Family Court's award of sole custody to the mother to be without
a sound and substantial basis. Acknowledging that the mother had
difficulty recognizing that the children are entitled to have a
meaningful relationship with their father – a factor which Family
Court did not expressly evaluate – upon this record, we do not
find that the parties' history was such that joint custody was
inappropriate (compare Matter of Brown v Akatsu, 125 AD3d 1163,
1165-1166 [2015]; Matter of Koch v Koch, 121 AD3d 1201, 1201-1203
[2014]; Matter of DiMele v Hosie, 118 AD3d at 1177-1178; Fiacco v
Fiacco, 93 AD3d 1095, 1096-1097 [2012]). Despite the mother's
obvious dislike for the father, throughout the rather lengthy


    3
        Family Court violated the confidences of the children
made during their Lincoln hearing (see Matter of Verry v Verry,
63 AD3d 1228, 1229 [2009], lv denied 13 NY3d 707 [2009]). While
there is little question that the court's disclosures were
improper, we do not find them to be an independent basis to
disturb the custody determination (see Matter of Rivera v
LaSalle, 84 AD3d 1436, 1437 [2011]).
                               -6-                519869

duration of these proceedings, the parties fairly successfully
maintained joint custody of the children who, by all accounts,
enjoyed spending substantial time with both of their parents.
Both homes were found to be safe and adequate, the concerns over
drug or alcohol abuse were unfounded, the children were provided
for by both parents and the father openly expressed the
importance of acting in the best interests of the children and
encouraging their relationships with their mother. Thus, we find
no basis in the record to conclude that the temporary arrangement
awarding the parties joint legal custody should not be made
permanent. Although not binding upon Family Court (see Matter of
Benjamin v Lemasters, 125 AD3d 1144, 1147 [2015]; Robert B. v
Linda B., 119 AD3d 1006, 1009 [2014], lv denied 24 NY3d 906
[2014]), in light of the foregoing, we note that the
recommendations of joint custody in both court-ordered
evaluations seem especially significant.

      Accordingly, we reverse the order of Family Court to the
extent that it granted sole legal custody to the mother and award
the parties joint legal custody of the children with primary
physical custody to the mother.4 We also find it is in the best
interests of the children to expand the father's parenting time.
First, the father's weekends should be expanded to include Sunday
evening and Monday until the beginning of the school day. The
father is responsible for getting the children to school on
Monday mornings. Second, with respect to summer vacation, the
father is awarded two weeks of uninterrupted parenting time –
taken either separately or consecutively – and he shall provide
written notice to the mother 30 days prior to the vacation. No
notice to Family Court is necessary. Nor is it necessary for the
father to refrain from working during that time. All of the
other provisions of the September 12, 2014 custodial order shall
remain in effect.

      Any remaining contentions, to the extent not specifically
addressed herein, have been considered and found to be without
merit.


     4
        We note that the attorney for the children now argues in
favor of an award of sole legal custody to the father.
                              -7-                  519869

     Garry, J.P., Egan Jr. and Rose, JJ., concur.



      ORDERED that the order is modified, on the law and the
facts, without costs, by reversing so much thereof as awarded
sole legal custody of the children to petitioner; the parties are
awarded joint legal custody with primary physical custody to
petitioner and respondent's parenting time with the children is
adjusted as set forth in this Court's decision; and, as so
modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
