                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: February 23, 2017                    522111
__________________________________

In the Matter of AMANDA L.
   SNOW,
                    Respondent,
      v
                                             MEMORANDUM AND ORDER
STEVEN D. DUNBAR,
                     Appellant.

(And Another Related Proceeding.)
__________________________________


Calendar Date:   January 11, 2017

Before:   McCarthy, J.P., Garry, Lynch, Rose and Aarons, JJ.

                              __________


      Felasco & Cuomo, PLLC, Dewitt (Lucille M. Rignanese of
counsel), for appellant.

      Woodman & Getman, Waterville (William H. Getman of
counsel), for respondent.

     William Koslosky, Utica, attorney for the children.

                              __________


Aarons, J.

      Appeal from an order of the Family Court of Madison County
(DiStefano, J.), entered March 25, 2015, which, among other
things, granted petitioner's application, in a proceeding
pursuant to Family Ct Act article 6, for custody of the parties'
children.

      Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the unmarried parents of a daughter
(born in 2009) and a son (born in 2011). The mother and father
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were previously engaged, but their relationship eventually
faltered and they never got married. The parties lived in the
same residence until June 2013, when the mother moved out to
reside with her now husband. Also in June 2013, the mother
petitioned for custody of the children. The father cross-
petitioned for joint legal custody and primary physical custody
of the children, unless the mother moved in, or near, the City of
Oneida, Madison County, in which case the father sought joint
legal and physical custody of the children. The parties shared
custody of the children under an informal arrangement and,
following a trial, Family Court awarded the parties joint legal
custody of the children, granted primary physical custody of the
children to the mother and set forth a visitation schedule for
the father. The father appeals. We affirm.

      In making an initial custody determination, Family Court's
primary concern is the best interests of the children, "which
involves consideration of factors including the parents' past
performance and relative fitness, their willingness to foster a
positive relationship between the children and the other parent,
as well as their ability to maintain a stable home environment
and provide for the children's overall well-being" (Matter of
Lawton v Lawton, 136 AD3d 1168, 1169 [2016] [internal quotation
marks, brackets and citations omitted]; see Matter of Gentile v
Warner, 140 AD3d 1481, 1482 [2016]; Matter of Kayla Y. v Peter
Z., 125 AD3d 1126, 1127 [2015]). "[W]e accord great deference to
Family Court's credibility assessments and factual findings, and
will not disturb its determination if supported by a sound and
substantial basis in the record" (Matter of Jarren S. v Shaming
T., 117 AD3d 1109, 1110 [2014]; see Matter of Windom v Pemberton,
119 AD3d 999, 999 [2014]; Matter of Melissa K. v Brian K., 72
AD3d 1129, 1131 [2010]).

      Although Family Court was tasked with choosing between two
less than perfect parents, the record evidence reveals that both
parties are capable of caring for the children. The mother had
some financial issues and a history of substance abuse for which
she received treatment at a facility. The mother's financial
struggles, however, did not rise to the level of "chronic
financial difficulties" such that it negatively affected the
children (Matter of Breitung v Trask, 279 AD2d 677, 679 [2001]).
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Furthermore, Family Court found that the mother's use of illicit
substances was too remote in time so as to be "irrelevant."
Despite the mother's shortcomings, she had performed most of the
housework while residing with the father and has been the primary
caretaker of the children since their birth. With her husband,
the mother provided suitable housing for the children. The
mother also had a flexible work schedule and a very close
relationship with her mother, who would help take care of the
children.

      Regarding the father, the record evidence indicates that he
read books, played, danced and watched movies with the children
and that, when together, he would devote his attention to them.
The mother, however, provided a contrasting picture of the
father's interactions with the children and testified that the
father would often sleep or watch television when he was at home
with them. The mother also testified as to the father's control
issues while they resided together. According to the mother, the
father deprived her of access to the family's finances, directed
her on how to clean the floors or what clothes to wear and became
upset when she did not return his phone calls. The mother
further testified as to the uncleanliness of the father's house
after she moved out and that the father made the daughter
"pink[y] swear" that she would be nice to the mother's husband so
that the husband would not hurt her.

      To the extent that the father disputed the mother's
testimony, it presented a credibility determination for Family
Court's resolution (see Matter of William BB. v Melissa CC., 136
AD3d 1164, 1166 [2016]; Matter of Jeker v Weiss, 77 AD3d 1069,
1071 [2010]). Furthermore, given Family Court's superior
position to evaluate and observe the demeanor of the witnesses
(see Matter of Daniel TT. v Diana TT., 127 AD3d 1514, 1515
[2015]), we find no fault with Family Court's assessment that the
father initially presented himself "in an exemplary fashion" but,
upon cross-examination, his "presentation began to unravel."

      In view of the foregoing, we conclude that Family Court's
determination that the father's control issues did not make
shared physical custody feasible and that the mother, who took
care of the children's day-to-day needs, would better promote the
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intellectual and emotional development of the children stemmed
from an examination of the relevant factors involved in
determining the best interests of the children and was supported
by a sound and substantial basis in the record (see Matter of
Gentile v Warner, 140 AD3d at 1483; Matter of Raynore v Raynore,
92 AD3d 1167, 1169 [2012]; Matter of Danielle TT. v Michael UU.,
90 AD3d 1103, 1104 [2011]; Matter of Morrow v Morrow, 2 AD3d
1225, 1226-1227 [2003]). Accordingly, we discern no basis to
disturb the award of primary physical custody of the children to
the mother.

     McCarthy, J.P., Garry, Lynch and Rose, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
