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

189
CAF 13-01436
PRESENT: PERADOTTO, J.P., CARNI, SCONIERS, AND WHALEN, JJ.


IN THE MATTER OF APRIL K. DEJESUS,
PETITIONER-RESPONDENT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

RODNEY N. HAYMES, RESPONDENT-PETITIONER-RESPONDENT.


PAUL M. DEEP, UTICA, FOR PETITIONER-RESPONDENT-APPELLANT.


     Appeal from an order of the Family Court, Oneida County (Frank S.
Cook, J.H.O.), entered July 25, 2013 in a proceeding pursuant to
Family Court Act article 6. The order, inter alia, found that
petitioner-respondent had willfully violated a prior court order.

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

     Memorandum: Petitioner-respondent mother and respondent-
petitioner father are the parents of four children. The parties
stipulated to an order of custody that, among other things, granted
the father visitation with the children during the first three
weekends of each month. The mother allegedly denied the father access
to the children in the fall of 2012 and winter of 2013. In December
2012, the father filed a petition for enforcement of the order of
custody and, in January 2013, a petition for the violation thereof.
Family Court found that the mother had willfully violated the order of
custody. We affirm.

     We reject the mother’s contention that the court erred in finding
that her violation of the order was willful. The mother presented
evidence at trial that the children did not want to visit the father
because they were afraid of him owing to fist fights with his
girlfriend, his physical aggression toward them, and his drug use.
According to the mother, her violation of the order was not willful
inasmuch as she was justified in not subjecting the children to such
an environment. The father, however, presented evidence that, after
conducting an investigation, caseworkers from the Oneida County
Department of Social Services found his home to be safe for the
children. The father testified that what the children thought to be
an illegal drug in his home was actually flavored tobacco from the
smoke shop he owned. The father also provided evidence that the
domestic violence to which the mother referred was actually just one
incident in 2009 during which he had an argument with his girlfriend
and that, contrary to the mother’s testimony, it was her own house
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                                                         CAF 13-01436

that was unfit for the children because of her history of drug use.

      Given the conflicting nature of the evidence, whether the
mother’s violation was willful with respect to her denial of the
father’s custodial access to the children “distills to a credibility
determination” (Matter of Cobane v Cobane, 57 AD3d 1320, 1323, lv
denied 12 NY3d 706). “Given the court’s unique opportunity to assess
the credibility of the witnesses and observe their demeanor . . . ,
[its findings] are entitled to great deference and will not be
disturbed where, as here, there is a sound and substantial basis in
the record for those findings” (Matter of Wojcik v Newton [appeal No.
2], 11 AD3d 1011, 1012 [internal quotation marks omitted]; see Matter
of Tarrant v Ostrowski, 96 AD3d 1580, 1580-1581, lv denied 20 NY3d
855).




Entered:   March 20, 2015                       Frances E. Cafarell
                                                Clerk of the Court
