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

1319
CAF 12-02281
PRESENT: SMITH, J.P., FAHEY, LINDLEY, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF DWAYNE CROSS,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DANIELLE M. CASWELL, RESPONDENT-APPELLANT.
------------------------------------------
IN THE MATTER OF DANIELLE M. CASWELL,
PETITIONER-APPELLANT,

                    V

DWAYNE CROSS, RESPONDENT-RESPONDENT.


KOSLOSKY & KOSLOSKY, UTICA (WILLIAM L. KOSLOSKY OF COUNSEL), FOR
RESPONDENT-APPELLANT AND PETITIONER-APPELLANT.

STEVEN R. FORTNAM, ATTORNEY FOR THE CHILD, WESTMORELAND.


     Appeal from an order of the Family Court, Oneida County (James R.
Griffith, J.), entered November 9, 2012 in a proceeding pursuant to
Family Court Act article 6. The order, inter alia, awarded the
parties joint custody of their daughter with primary physical
residence to petitioner-respondent, Dwayne Cross.

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

     Memorandum: In this proceeding pursuant to article 6 of the
Family Court Act, respondent-petitioner mother appeals from an order
that, inter alia, awarded the parties joint custody of their daughter
with primary physical residence to petitioner-respondent father. The
mother contends that Family Court’s determination is not in the
child’s best interests and that we should award her sole custody with
reasonable visitation to the father. We affirm. In making a custody
determination, “the court must consider all factors that could impact
the best interests of the child . . . , including the existing custody
arrangement, the current home environment, the financial status of the
parties, the ability of [the parties] to provide for the child’s
emotional and intellectual development and the wishes of the child . .
. No one factor is determinative because the court must review the
totality of the circumstances” (Matter of Marino v Marino, 90 AD3d
1694, 1695; see Eschbach v Eschbach, 56 NY2d 167, 172-174).
                                 -2-                          1319
                                                         CAF 12-02281

     Here, although there are several factors that militate in favor
of awarding custody to the mother, we conclude that the court’s
determination that it is in the best interests of the child to award
primary physical custody to the father is supported by a sound and
substantial basis in the record (see Matter of Weekley v Weekley, 109
AD3d 1177, 1178; Matter of Crudele v Wells [appeal No. 2], 99 AD3d
1227, 1228). We note at the outset that we afford “great deference”
to the determination of the hearing court (Matter of Goossen v
Goossen, 72 AD3d 1591, 1591), with its “superior ability to evaluate
the character and credibility of the witnesses” (Matter of Thillman v
Mayer, 85 AD3d 1624, 1625). As the court found, the father can
provide a more stable home environment for the child than the mother.
He owns a four-bedroom home and is gainfully employed, while the
mother is unemployed and has resided in at least four different
apartments since separating from the father. One of the mother’s
apartments had a problem with mice and her current residence has only
one bedroom. In addition, the father has custody of the parties’
other child, and there is a preference for keeping siblings together
(see Eschbach, 56 NY2d at 173). Furthermore, it is undisputed that,
while the child was residing with the mother after the parties
separated, the mother ran out of money and food on several occasions
and had to ask the father for assistance, and the mother had her
furniture repossessed while this proceeding was pending.




Entered:   January 3, 2014                     Frances E. Cafarell
                                               Clerk of the Court
