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

186
CA 16-00761
PRESENT: WHALEN, P.J., CENTRA, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


PETER M. HENDRICKSON, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

KRISTINA L. HENDRICKSON, DEFENDANT-APPELLANT.
---------------------------------------------
CAROLYN R. KELLOGG, ESQ., ATTORNEY FOR THE
CHILD, APPELLANT.


LEGAL ASSISTANCE OF WESTERN NEW YORK, INC., BATH (MICHAELA K.
ROSSETTIE AZEMI OF COUNSEL), FOR DEFENDANT-APPELLANT.

CAROLYN R. KELLOGG, ATTORNEY FOR THE CHILD, WELLSVILLE, APPELLANT PRO
SE.

PULOS AND ROSELL, LLP, HORNELL (TIMOTHY J. ROSELL OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeals from an order of the Supreme Court, Allegany County
(Terrence M. Parker, A.J.), entered July 16, 2015. The order, among
other things, awarded the parties joint custody of the subject child
with primary placement to plaintiff.

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

     Memorandum: Defendant mother and the Attorney for the Child
(AFC) appeal from an order that awarded plaintiff father and the
mother joint custody of the subject child, with primary physical
residence to the father and visitation to the mother. Contrary to the
contention of the mother and the AFC, there is a sound and substantial
basis in the record for Supreme Court’s determination that awarding
the father primary physical residence is in the child’s best interests
(see generally Eschbach v Eschbach, 56 NY2d 167, 171-174). “The fact
that the mother was the child’s primary caretaker prior to the
parties’ separation is not determinative” (Matter of Owens v Pound,
145 AD3d 1643, 1644). The record supports the court’s determination
that both parents love and care for the child, but “[t]he mother is
less willing to truly co-parent [the child],” and “the father is the
more stable parent with a higher quality home and is better situated
to serve as a primary placement parent” (see id.; Matter of Honsberger
v Honsberger, 144 AD3d 1680, 1680). Furthermore, we reject the AFC’s
contention that the court gave undue weight to the paternal
grandparents’ involvement in the child’s life inasmuch as “a more fit
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                                                         CA 16-00761

parent will not be deprived of custody simply because the parent
assigns day-care responsibilities to a relative owing to work
obligations” (Matter of Chyreck v Swift, 144 AD3d 1517, 1518).

      Finally, “[a]lthough the court must consider the effects of
domestic violence in determining the best interests of the child[ ],”
we conclude that the mother failed to prove her allegations of
domestic violence by a preponderance of the evidence (Matter of Miller
v Jantzi, 118 AD3d 1363, 1363-1364). “The court’s ‘first-hand
assessment of the credibility of the witnesses after an evidentiary
hearing . . . is entitled to great weight and will not be set aside
unless it lacks an evidentiary basis in the record’ ” (Chyreck, 144
AD3d at 1518). Here, the father denied the mother’s allegations of
domestic violence, and the court resolved the conflicting testimony in
favor of the father. We perceive no reason to disturb the court’s
credibility determination (see Pierre-Paul v Boursiquot, 74 AD3d 935,
936).




Entered:   February 10, 2017                    Frances E. Cafarell
                                                Clerk of the Court
