                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 19, 2015                    518014
________________________________

In the Matter of EDWARD
   BENJAMIN,
                    Appellant,
      v                                      MEMORANDUM AND ORDER

KALYNN LEMASTERS,
                    Respondent.
________________________________


Calendar Date:   January 15, 2015

Before:   Lahtinen, J.P., Garry, Devine and Clark, JJ.

                              __________


     Emily Karr Cook, Elmira, for appellant.

     Pamela Bleiwas, Ithaca, for respondent.

     Pamela D. Gee, Elmira, attorney for the child.

                              __________


Garry, J.

      Appeal from an order of the Family Court of Chemung County
(Keene, J.), entered November 18, 2013, which, among other
things, dismissed 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 child
(born in 2009). The mother resides in Michigan and also has an
older child and two younger children with other fathers. The
father resides in New York. The mother was 15 years of age and
residing in Michigan and the father was approximately two years
older when the parties began an online acquaintance in 2007.
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Approximately one year later, the father moved to Michigan and
began residing there with the mother, in her mother's home. The
parties thereafter had an unstable relationship, separating and
reconciling several times, moving frequently, and residing with
various friends or relatives, either separately or together, in
four different states, including New York and Michigan. In
December 2011, during a period when the parties were living
together in Michigan, the father ended the relationship and moved
to the City of Elmira, Chemung County, taking the child with him.
He asserts that he did so pursuant to the parties' agreement that
he would take custody of the child; the mother claims that the
trip was intended to be a temporary visit, with the understanding
that the child would be returned to Michigan after two weeks. In
September 2012, the mother told the father that she wished to
reconcile with him. He traveled to Michigan, picked up the
mother and her other children, and brought them to Elmira. After
several days, without notice to the father, the mother returned
to Michigan with the children, including the subject child. She
later testified that her claim about reconciling with the father
had been a ruse, and that her true intent had been to retrieve
the child.

      The father commenced this custody proceeding in September
2012 and was granted temporary custody of the child, who was
returned to New York in February 2013. Following a fact-finding
hearing, Family Court awarded sole legal and physical custody of
the child to the mother and scheduled parenting time with the
father. The father appeals.

      The paramount consideration in an initial custody
proceeding is the child's best interests, taking into
consideration such factors as the parents' past performance,
relative fitness, willingness to foster the child's relationship
with the other parent and ability to maintain a stable home and
provide for the child's overall well-being (see Matter of DiMele
v Hosie, 118 AD3d 1176, 1177 [2014]; Matter of Keen v Stephens,
114 AD3d 1029, 1030 [2014]; Matter of Melissa WW. v Conley XX.,
88 AD3d 1199, 1200 [2011], lv denied 18 NY3d 803 [2012]).
Initially, we find a sound and substantial basis in the record
for Family Court's determination that joint custody was not
feasible, based upon the parties' mutual history of blocking one
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another's access to the child and their testimony that they have
difficulty communicating about the child and often misunderstand
or misinterpret one another in attempting to reach agreements
about her (see Bowman v Engelhart, 112 AD3d 1187, 1188 [2013];
Jeannemarie O. v Richard P., 94 AD3d 1346, 1347 [2012]).

      As for the award of legal and physical custody to the
mother, the record reveals that both parents love the child, both
have parental strengths, and both also have significant
weaknesses, including their youth, unstable history and lack of
education. The mother was 21 years of age at the time of the
fact-finding hearing, the father was 23 years of age, and both
had dropped out of high school before graduating. In the
father's favor, he had been working steadily for the same
employer for two years at the time of the hearing, was current
with his bills, and testified that he had sufficient income,
augmented by food stamps, to provide for the child's needs. He
resided in a two-bedroom apartment where the child had her own
room, and lived near several relatives, including cousins with
whom the child often socialized and an aunt who babysat for the
child when he was at work. He was enrolled in GED classes with
the goal of obtaining his high school diploma and attending
college.

      The parties offered conflicting testimony that raised
concerns relative to the father's emotional stability, however,
including allegations of medication overdoses, violent and angry
outbursts and threats of violence with use of weapons against the
mother. Although the father's attorney argues upon appeal that
this testimony should be disregarded, we note that Family Court
credited the mother's account, finding that the father had
exhibited controlling and violent behavior toward the mother and
had threatened, intimidated and manipulated her. This Court
defers to such factual determinations and credibility assessments
(see Matter of Lopez v Robinson, 25 AD3d 1034, 1035-1036 [2006]).

      At the time of the hearing, the mother was residing with
her other children and her fiancé – whom she reportedly married
shortly after the hearing – in a leased three-bedroom home with a
fenced backyard. The fiancé was employed at a factory, earning a
sufficient income to permit the mother to stay at home caring for
                                -4-                518014

the children.    Several members of the mother's extended family
lived nearby,   including her mother, sister and grandmother. She
described the   structured schedule that the child would follow if
placed in her   custody and stated that she regularly provided her
children with   educational activities to prepare them for school.

      The testimony of both parties supports Family Court's
determination that the mother had been the child's primary
caretaker during most of her early life. As for fostering the
other parent's relationship with the child, both parties
described incidents in which the other parent had cut off access
to the child by refusing to provide contact information or permit
visits or telephone calls. However, the mother testified at the
hearing that she wanted the child to have a good relationship
with both parents and, if granted custody of the child, would
permit the father to talk with the child every day, send him
pictures and maintain a good relationship with him. The father,
by contrast, testified that he would be reluctant to allow the
mother to have unsupervised visits with the child because he
distrusted her and feared that she might take the child away from
him.

      The father's primary contention on appeal is that Family
Court's finding that the mother's testimony was more credible
overall than his lacks a sound and substantial basis in the
record. The father points to the mother's acknowledgment that
she deceived the father about her wish to reconcile with him in
order to regain custody of the child, and then deceived him again
by removing the child to Michigan without informing him. The
mother, however, was frank in admitting that she had deceived the
father, testifying that she had done so because she did not
understand the law, missed the child and believed that this was
the only way to regain contact with her. The court did not
directly address this aspect of the mother's behavior, but – with
regard to her failure to maintain contact with the child
following the father's move to New York – found that the mother's
failure to seek custody of the child by legal means resulted from
her youth and inexperience and the father's misconduct in keeping
the child from her rather than lack of love or concern for the
child. As previously noted, this Court defers to such factual
determinations and assessments of credibility by Family Court.
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      The father further argues that Family Court erred in
failing to consider the position of the attorney for the child
that it would be in the child's best interests to award physical
custody to the father. Although the position of the attorney for
the child is a factor to be considered in determining a child's
best interests, it is not determinative (see Matter of DiMele v
Hosie, 118 AD3d at 1178-1179; Matter of Graham v Graham, 24 AD3d
1051, 1054 [2005], lv denied 6 NY3d 711 [2006]). Here, the trial
attorney for the child explained that his position was based
primarily upon the mother's failure to visit the child,
communicate with her or petition for custody after the father
took her to New York. The court, however, credited the mother's
testimony that she attempted unsuccessfully to get the child back
by, among other things, contacting police, and, as previously
noted, found her to be devoted to the child. Subsequently, the
appellate attorney for the child advocated in favor of the
court's custody award. Considering the record as a whole, and
noting that the child's placement in Michigan avoids separating
her from her half siblings (see Matter of Ebert v Ebert, 38 NY2d
700, 704 [1976]), we find no basis for disturbing the custody
award.

      Finally, the father challenges Family Court's award of
parenting time to him on alternate weekends in Michigan, arguing
that he will be deprived of contact with the child as he cannot
travel to Michigan given the distance involved and his limited
financial resources. However, the court attempted to minimize
the harmful impact of these factors by also allowing unrestricted
telephone contact and scheduling parenting time with the father
in New York during holiday breaks and for a full month in the
summer (see Matter of Schneider v Lascher, 72 AD3d 1417, 1418
[2010], lv denied 15 NY3d 708 [2010]). The child's youth weighs
against transporting her to New York for short visits, and the
father has demonstrated through past travel that he is able to
make trips to Michigan when necessary for the child's benefit.
The court noted that it may be feasible for the father to move to
Michigan to be closer to the child, given his unmarried status
and the "transplantable" nature of his job skills as a taxi
driver (Thompson v Smith, 277 AD2d 520, 522 [2000]; compare
Matter of Tropea v Tropea, 87 NY2d 727, 740 [1996]). For these
reasons, we find the parenting time schedule to be supported by a
                              -6-                  518014

sound and substantial basis in the record (see Matter of McLean v
Bell, 35 AD3d 744, 744-745 [2006]).

     Lahtinen, J.P., Devine and Clark, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
