                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 5, 2016                       520915
________________________________

In the Matter of MATTHEW R.
   FRITTS,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

TAMMY SNYDER,
                    Appellant.

(And Another Related Proceeding.)
________________________________


Calendar Date:   March 24, 2016

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

                             __________


     Lisa K. Miller, McGraw, for appellant.

     Margaret McCarthy, Ithaca, for respondent.

     Randolph V. Kruman, Cortland, attorney for the child.

                             __________


Egan Jr., J.

      Appeal from an order of the Family Court of Cortland County
(Campbell, J.), entered April 15, 2015, 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 son (born
in 2009). Within two or three months of the child's birth, the
father began visiting with the child for a few hours each week;
as the child grew older, the father's visitations expanded to
                              -2-                520915

every other weekend and, by September 2013, the parties were
alternating physical custody of the child on a weekly basis. In
the fall of 2013, the child's maternal grandmother became ill;
the grandmother entered a residential care facility in February
2014 and died in August 2014. During this time period, and at
the mother's request, the child began spending more time at the
father's residence.

      By all accounts, this arrangement worked well until August
2014 when the father read in a local newspaper that the mother
had been arrested for driving while intoxicated in April 2014.
In response, the father reached out to a deputy for the Cortland
County Sheriff's Department, who was the father of the mother's
other child, and the deputy shared his concerns regarding the
mother's alcohol use.1 The father then contacted an attorney and
thereafter learned that the mother also had been arrested for
driving while intoxicated in 2012.2 Based upon this information,
the father elected not to return the child to the mother in
September 2014, as the result of which the mother did not see the
child for several weeks.

      The father then commenced this proceeding seeking custody
of the child, and the mother cross-petitioned for similar relief.
In October 2014, Family Court issued a temporary order awarding
physical custody to the father and visitation to the mother.
Following a hearing on the petitions, Family Court – although


    1
        The deputy and the mother had joint legal custody of
their daughter with primary physical custody to the deputy and
visitation to the mother three weekends each month – together
with shared holidays and vacations.
    2
        With respect to the 2012 offense, the mother pleaded
guilty to driving while ability impaired, paid various fines and
received a conditional license. Following the 2014 offense, the
mother pleaded guilty to aggravated driving while intoxicated and
aggravated unlicensed operation of a motor vehicle and was placed
on probation for three years. The mother also was required to
wear an ankle monitor, which was designed to detect alcohol in
her system, for a period of time.
                              -3-                520915

clearly displeased with the father's unilateral decision to
withhold the child from the mother in September 2014 – granted
the father's application and awarded the parties joint legal
custody of the child with primary physical custody to the father
and visitation to the mother on three consecutive weekends each
month, together with shared holidays and alternating weeks of
parenting time during the summer. This appeal by the mother
ensued.

      "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" (Matter of Benjamin v
Lemasters, 125 AD3d 1144, 1145 [2015] [citations omitted]; see
Matter of Rosetta BB. v Joseph DD., 125 AD3d 1205, 1206 [2015]).
In light of "Family Court's superior ability to observe and
assess the witnesses' testimony and demeanor firsthand" (Matter
of DiMele v Hosie, 118 AD3d 1176, 1177 [2014]), this Court will
defer to Family Court's factual findings and credibility
assessments – provided such determinations are supported by a
sound and substantial basis in the record (see Matter of Adam MM.
v Toni NN., 124 AD3d 955, 955 [2015]).

      Here, Family Court was presented with two generally fit and
loving parents – each of whom possessed various strengths and
shortcomings. The father, who has long maintained a consistent
and strong presence in the child's life despite the absence of a
formal custody order, is a self-employed dairy farmer – managing
a 300-acre farm and approximately 100 cows. The farm, where the
child spent most of his time before and after preschool each day,
is located a short distance from the father's five-bedroom home,
which he shared with his girlfriend, the child and – at various
times – his daughter and his girlfriend's sons from prior
relationships. The father testified as to his daily routine with
the child, as well as his efforts to address issues regarding the
child's teeth and need for speech therapy. The father also
acknowledged the importance of the mother's role in the child's
life and indicated that he was able to communicate with her in a
cooperative fashion. At the time of the hearing, the mother, who
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did not then have a valid driver's license3 and still was on
probation, was taking classes at a local community college and
living in a three-bedroom apartment that she obtained through a
subsidized housing program. Although the mother indicated that
she was "doing daycare after school," an apparent reference to
providing daycare services in her home, the record reflects that
she primarily was relying upon food stamps and the $13,000 that
she received in life insurance and retirement benefits following
her mother's death to support herself. The mother also was
participating in counseling sessions at the time of the hearing,
although her testimony was inconsistent as to whether such
counseling was voluntary or was a term and condition of her
probation. In this regard, the mother had been evaluated and
diagnosed as alcohol dependent, but she disagreed with that
diagnosis, stating instead, "I think I need the counseling for
. . . reasons other than alcohol."

      The parties are to be commended for establishing and
maintaining an informal – and for a number of years successful –
shared custody arrangement, as well as their stated willingness
to continue to work together in a cooperative fashion for the
good of their child, and it is clear that the child benefits from
having both of his parents actively involved in his life. As
Family Court aptly observed, however, alternating physical
custody of a school-age child whose parents reside in different
school districts simply is not practical, thereby necessitating
an award of primary physical custody to either the father or the
mother. In this regard, while we share Family Court's concerns
regarding the father's unilateral decision to withhold the child
from the mother for a period of time beginning in September 2014,
we cannot fault the court for being equally concerned regarding
the mother's alcohol-related history. Based upon those
considerations, and taking into account the father's more
consistent schedule and employment, we agree that the father is
better able to provide a more secure and stable environment for
the child. As we are satisfied that Family Court's resolution of
this matter is supported by a sound and substantial basis in the


     3
        The mother also testified that her vehicle previously had
been repossessed.
                              -5-                  520915

record, the underlying order is affirmed.

     McCarthy, J.P., Rose, Devine and Clark, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
