                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 14, 2016                      521738
________________________________

In the Matter of AMY BASDEN,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

BARON FAISON SR.,
                    Appellant.
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Calendar Date:   May 26, 2016

Before:   Lahtinen, J.P., Rose, Lynch, Clark and Aarons, JJ.

                              __________


     Betty J. Potenza, Highland, for appellant.

     Theodore J. Stein, Woodstock, for respondent.

     Claudia S. Davenport, Kingston, attorney for the child.

                              __________


Lynch, J.

      Appeal from an order of the Family Court of Ulster County
(Savona, J.), entered August 5, 2015, which granted petitioner's
application, in a proceeding pursuant to Family Ct Act article 6,
for custody of the parties' child.

      Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the unmarried parents of one child
(born in 2011). The parties lived together for a short time
following the child's birth but have lived separately since
February 2012. In September 2014, the mother petitioned Family
Court for custody of the child. After a fact-finding hearing,
Family Court granted joint legal custody of the child to the
parties, primary physical custody to the mother and parenting
time to the father during alternate weekends and every Tuesday
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through Thursday morning.   The father 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 Lawton v
Lawton, 136 AD3d 1168, 1169 [2016], quoting Matter of Adams v
Morris, 111 AD3d 1069, 1069-1070 [2013]). Typically, this Court
defers to Family Court's factual findings and credibility
assessments, and we will only disturb a custody determination if
it lacks a sound and substantial basis in the record (see Matter
of Lawton v Lawton, 136 AD3d at 1169; Matter of Daniel TT. v
Diana TT., 127 AD3d 1514, 1515 [2015]).

      Here, the mother testified that she lived with her
grandmother, 15-year-old daughter and the child. The father
resided with the child and his son who was in kindergarten. The
child had her own room at the father's house and shared a room
with her mother and half sister at the mother's house. The
mother was unemployed at the time of the fact-finding hearing but
had been working regularly since the child's birth. The father
had not been employed for some time due to an unspecified
disability. Both parties were in receipt of some public
assistance and the mother regularly gave the father money to help
pay for his living expenses.

      The mother testified that her 15-year-old daughter was
close with the child, was able to help watch her and spent time
helping her learn shapes and colors. She testified that,
although the father did care for the child overnight when she
worked, she had always been the child's primary caregiver. The
mother's primary concern was that she had observed the father's
son be physically aggressive with the child and the father was
not willing to acknowledge or address the issue. The father
testified that he had cared for the child while the mother was
working. He submitted photographs as evidence of the child's
close relationship with her older half brother and denied that
there was ever any conflict between them. He did testify that
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the older boy had been abused by an older sibling, that he
suffered from anxiety and that he had undergone an evaluation.
Although the results of the evaluation were not submitted, Family
Court specifically credited the mother's testimony with regard to
the older boy's behavior towards the child.

      The record indicates that although both parents have
certain strengths and weaknesses, they are well-intentioned and
generally able to care for the child. Prior to making its
determination, Family Court concluded that the mother had "strong
familial support" and noted the mother's comparatively steady
employment history and role as the child's primary caregiver.
Upon our review of the record as a whole and giving the requisite
deference to Family Court's credibility assessments, we find that
its custody determination and award of parenting time is
supported by a sound and substantial basis in the record (see
Matter of Lawton v Lawton, 136 AD3d at 1169-1170; Matter of
William BB. v Melissa CC., 136 AD3d 1164, 1167 [2016]).

     Lahtinen, J.P., Rose, Clark and Aarons, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
