                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: January 19, 2017                    520294B
________________________________

In the Matter of CHRISTOPHER P.
   DRISCOLL,
                    Respondent,
      v
                                             MEMORANDUM AND ORDER
AMBER N. OURSLER,
                     Appellant.

(And Other Related Proceedings.)
________________________________


Calendar Date:   November 18, 2016

Before:   Peters, P.J., McCarthy, Egan Jr., Lynch and Devine, JJ.

                              __________


     Michelle I. Rosien, Philmont, for appellant.

     Karen L. Howe, Cortland, for respondent.

     Elizabeth Aherne, Ithaca, attorney for the child.

                              __________


Lynch, J.

      Appeal from an order of the Family Court of Cortland County
(Campbell, J.), entered October 6, 2014, which, among other
things, granted petitioner's application, in a proceeding
pursuant to Family Ct Act article 6, for custody of the parties'
child.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the unmarried parents of a daughter
(born in 2007). The parents lived and raised the child together
in a home owned by the father for approximately three years. In
December 2010, the mother moved out, leaving the child with the
                              -2-                520294B

father. Thereafter, the parties continued a platonic
relationship, cooperatively scheduling parenting time around
their work schedules, vacationing together with the child and
often socializing together with their friends. They continued to
share nearly equal parenting time until approximately December
2012, when the father began a new relationship. At that time he
decided that he "couldn't continue in the sort of interaction
that was happening with [the mother]." In May 2013, the father
petitioned Family Court for joint legal and primary physical
custody of the child. The parties continued to share nearly
equal parenting time pursuant to an unstructured schedule, albeit
with some increasing discord.

      On July 4, 2013, while the child was in the father's care,
the mother and her paramour visited a friend at her home on the
St. Lawrence River. The three were drinking and, according to
the friend's testimony, also using cocaine throughout the day.
Early the next morning, the mother and her paramour began arguing
and there was significant property damage. The friend testified
that the mother was acting erratically, the police were summoned
and the mother was transported to the hospital. She was released
the next day to her father's care. Following this event, Family
Court awarded the father temporary sole custody and physical
placement of the child with supervised parenting time to the
mother.

      From August 2013 through August 2014, the mother filed six
applications seeking to expand her parenting time, alleging that
the father had violated an order of custody and that he was
allowing third parties to watch the child during his custodial
time. Also during this period, the father filed an order to show
cause alleging that the mother had violated a custodial order,
and the attorney for the child filed an application seeking to
remove one of the individuals who had been deemed appropriate to
supervise the mother's parenting time. In response to these
applications, Family Court issued eight interim orders that,
among other things, identified the individuals permitted to
supervise the mother's parenting time, directed where the
supervised parenting time could occur and who could transport the
child to and from the mother's supervised parenting time,
directed the mother to undergo a drug and alcohol evaluation and
                              -3-                520294B

to participate in all recommended counseling, and, in July 2014,
allowed the mother to have unsupervised overnight parenting time.
During the pendency of these applications and interim orders,
Family Court heard testimony at a fact-finding hearing held
during 11 days over a span beginning on October 2, 2013 and
continuing until August 27, 2014. At the conclusion of the
hearing, the court awarded sole legal and physical custody of the
child to the father and parenting time to the mother during
alternate weekends, one evening per week, two weeks of summer
vacation and designated time during holidays. The court also
prohibited, among other things, the mother from "post[ing] on
Facebook, Twitter, or any other social media [s]ite any mention"
of the child, the father "or any members of their household."
The mother now appeals.

      "When making an initial custody determination, the court
must focus on the best interests of the child, which involves
consideration of factors including 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 Basden v Faison,
141 AD3d 910, 910-911 [2016] [internal quotation marks, brackets
and citations omitted]). An award of joint legal custody may not
be appropriate where the parents are unable to "effectively and
directly communicate with one another to care for the child's
needs" (Matter of David J. v Leeann K., 140 AD3d 1209, 1211
[2016]). "We accord great deference to Family Court's factual
findings and credibility determinations given its superior
position to observe and assess the witnesses' testimony and
demeanor firsthand, and will not disturb its custodial
determination if supported by a sound and substantial basis in
the record" (Matter of Daniel TT. v Diana TT., 127 AD3d 1514,
1515 [2015] [citations omitted]).

      We agree with the mother that some of Family Court's
factual findings lack a sound and substantial basis in the
record. Nevertheless, we find that the extensive record is
sufficiently complete to allow us to exercise our authority –
which in custody matters is as broad as Family Court's – to
modify the custodial award, as necessary, without remitting to
                              -4-                520294B

that court (see Matter of Gentile v Warner, 140 AD3d 1481, 1483
[2016]). It appears to be undisputed that the mother was the
child's primary caretaker when the parties lived together. After
they separated, it was the mother who typically took the child to
the doctor and arranged for her to attend preschool. Once the
parties attempted to formalize a parenting schedule, their
initially cooperative parenting relationship deteriorated
quickly. The mother argued that the father often denied her
access by limiting her parenting time and nightly phone calls to
the child, and the father claimed that the mother frequently
chose not to exercise her right to parenting time. Each party
argued that the other believed that he or she could control and
alter the parenting schedule at his or her convenience. Although
Family Court seemed to focus on the mother's behavior, the record
reveals that the father was often similarly hostile,
disrespectful and manipulative. Further, both parties were
distrustful, prone to gamesmanship and habitually sought law
enforcement to aid resolution of their disputes.

      Given the evidence of mutual hostility, we find that the
record amply supports Family Court's determination that joint
custody was not feasible (see Matter of David J. v Leeann K., 140
AD3d at 1211; Bowman v Engelhart, 112 AD3d 1187, 1188 [2013]).
Further, while we do not find record support for each of the
court's factual findings, we do find sound and substantial
support for the court's determination to award the father primary
physical custody. Notably, the mother consistently denied using
cocaine during the July 2013 weekend even after she tested
positive for the drug. As disturbing as that incident was, we
are mindful that the mother did submit to a drug and alcohol
evaluation and willingly participated in all of the recommended
group and individual counseling before being discharged, with no
recommendation for further treatment. While it appears both
parties engaged in an active social life, the mother's lifestyle
was less stable than the father's. Notably, she changed jobs a
number of times, did not have stable housing and, in August 2014,
she did not have transportation. By comparison, the father had
been at the same job for more than five years, had relatively
stable housing and was living with his paramour and their newborn
child. We do not doubt that the mother loves the child and wants
to provide a stable home, but deferring to the court's
                              -5-                520294B

credibility assessments, we find that the record supports the
court's determination that it was in the child's best interests
to award the father sole legal and primary physical custody (see
Matter of Smithey v McAbier, 144 AD3d 1425, 1426 [2016]; Matter
of Daniel TT. v Diana TT., 127 AD3d at 1515; Matter of Benjamin v
Lemasters, 125 AD3d 1144, 1145 [2015]).

      Upon our review of the record and exercising our broad
authority, we further conclude that the child's interests will
best be served by awarding the mother additional parenting time
(see Bowman v Engelhart, 112 AD3d at 1189). In our view, Family
Court's award of parenting time one Tuesday evening from 4:00
p.m. to 7:00 p.m. and on alternate weekends from Friday at 5:00
p.m. until Sunday at 7:00 p.m. fails to provide the mother and
child a sufficiently meaningful opportunity to continue to
develop their close relationship. We thus modify the order to
add parenting time on each Thursday evening from 4:00 p.m. to
7:00 p.m., provided that the mother's work schedule permits such
parenting time. If not, the parties are directed to select
another day to allow the mother to have at least three additional
hours of parenting time each week. We further find that the
mother shall be entitled to additional parenting time during the
one-week school vacation periods in February, April and December.
During each of these weeks, the mother shall be entitled to
overnight parenting time from Tuesday at 4:00 p.m. to Wednesday
at 7:00 p.m.

      Next, we find that Family Court's order must be modified to
allow the mother to have unrestricted access to all of the
child's educational and medical records. The father shall keep
the mother informed of – and the mother shall be permitted to
attend – all appointments, meetings and school events regarding
the child. Finally, while we discern no error in Family Court's
determination that the father was permitted to monitor the
mother's telephone calls with the child, we do not believe that
the broad restriction on the mother's social media activity was
warranted. Giving deference to the court's credibility
assessments, the mother had a history of disparaging the father
and his paramour on social media, but there was no evidence of
inappropriate use with regard to the child. Accordingly, we
modify the prohibition by limiting it to communications regarding
                              -6-                  520294B

the father, the paramour or their child. In general, we trust
that the parties will learn to exercise appropriate and
respectful use of social media.

      We have considered the parties' remaining contentions and
find them to be without merit.

     Peters, P.J., McCarthy, Egan Jr. and Devine, JJ., concur.



      ORDERED that the order is modified, on the law and the
facts, without costs, by (1) directing petitioner to provide
respondent with any and all paperwork necessary to allow her to
access the child's educational and medical records, (2) adding
additional parenting time to respondent as set forth in this
Court's decision and (3) expanding respondent's use of social
media as set forth in this Court's decision, and, as so modified,
affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
