                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 19, 2015                    517620
____________________________________

In the Matter of KAYLA Y.,
                    Appellant,
      v
                                             MEMORANDUM AND ORDER
PETER Z.,
                     Respondent.

(And Two Other Related Proceedings.)
____________________________________


Calendar Date:    January 13, 2015

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

                              __________


     Gerald D. Raymond, Chittenango, for appellant.

     Abbie Goldbas, Utica, for respondent.

     Mark A. Schaeber, Liverpool, attorney for the child.

                              __________


Rose, J.

      Appeal from an order of the Family Court of Madison County
(McDermott, J.), entered September 24, 2013, which, among other
things, granted respondent's application, in three proceedings
pursuant to Family Ct Act article 6 and/or article 8, for custody
of the parties' child.

      Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the unmarried parents of a daughter
(born in 2008). The parties separated in 2010 and informally
shared parenting time with the child until the mother was
involved in an alcohol-related domestic violence incident with
her live-in boyfriend in March 2012, after which the father
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insisted on supervised visitation. In July 2012, the mother
filed a petition for custody and, in August 2012, she absconded
with the child from a supervised visitation without the father's
knowledge or consent. The father immediately filed a cross
petition for custody and obtained an order granting him temporary
custody.1 Family Court issued a second temporary order that
retained custody with the father and, among other things,
conditioned the mother's visitation on her boyfriend not being
present. After a hearing, Family Court concluded that, despite
the father's own shortcomings, he offered a more stable
environment for the child and would foster the child's
relationship with the mother. Family Court awarded the father
sole custody with liberal parenting time to the mother. The
mother appeals.

      "When making an initial custody determination, a court's
primary concern is 'the best interest of the child, and what will
best promote [the child's] welfare and happiness'" (Matter of
Koch v Koch, 121 AD3d 1201, 1201 [2014], quoting Eschbach v
Eschbach, 56 NY2d 167, 171 [1982]). Relevant factors include
"'the parents' past performance and relative fitness, their
willingness to foster a positive relationship between the child
and the other parent, as well as their ability to maintain a
stable home environment and provide for the child's overall well-
being'" (Matter of Keen v Stephens, 114 AD3d 1029, 1030 [2014],
quoting Matter of Adams v Morris, 111 AD3d 1069, 1069-1070
[2013]; accord Matter of Holland v Klingbeil, 118 AD3d 1077, 1078
[2014]). "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" (Matter of Koch v Koch, 121 AD3d
at 1202 [citation omitted]; see Matter of Alleyne v Cochran, 119
AD3d 1100, 1101 [2014]; Matter of Jarren S. v Shaming T., 117
AD3d 1109, 1110 [2014]).


    1
        The mother filed a family offense petition against the
father claiming that he was driving erratically through her
trailer park while looking for the child. Family Court dismissed
the petition, and the mother does not challenge that result on
the appeal.
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      The father, who is disabled and unemployed, has maintained
a stable residence in close proximity to the paternal
grandmother, who provides assistance in caring for the child.
Family Court credited the father's testimony that he is engaged
in the child's education and regularly attends her school
activities, while the mother is only sporadically involved.
Although the father testified that he uses marihuana for pain,
there was no showing that such use had ever endangered the child.
And while the father has a history of psychiatric treatment, the
evidence established that his condition is stable and his history
does not interfere with his ability to care for the child.

      While finding that the father has a stable home, Family
Court expressed its concern over the mother's less stable home
environment. The mother and her boyfriend testified that the
March 2012 domestic violence incident occurred when they were
both heavily intoxicated, to the extent that they could not
remember the details of how the mother ended up with a severe
black eye. The mother also did not offer any plan to separate
from the boyfriend if she were to be granted custody, despite the
fact that the temporary order in effect at the time of trial did
not allow the child to be in his presence.

      Although the mother contends that the father will not
foster the child's relationship with her based on his prior
conduct in unilaterally limiting her visitation after the
domestic violence incident instead of filing a petition for
custody, Family Court credited his testimony that he did not file
a petition in deference to the maternal grandmother's request
that he not do so in order to avoid further emotional turmoil for
the mother. In contrast, the evidence established that the
mother surreptitiously took the child from the father's custody
and, on another occasion, deprived the father of an opportunity
to take the child to a school event for fathers and daughters
because it occurred during her parenting time, despite the fact
that the father had previously allowed the mother to take the
child to a similar event for mothers that occurred while he had
the child. Based on these circumstances, and according deference
to Family Court's credibility determinations, the record provides
a sound and substantial basis for the award of custody to the
father, and that determination will not be disturbed (see Matter
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of Koch v Koch, 121 AD3d at 1203; Matter of Jarren S. v Shaming
T., 117 AD3d at 1111; Matter of Raynore v Raynore, 92 AD3d 1167,
1168-1169 [2012]).

     Peters, P.J., Egan Jr. and Clark, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
