Opinion
299 CAF 18–01362
03-15-2019
In the Matter of Joshua T. ATHOE, Petitioner–Respondent, v. Nia M. GOODMAN (Botkin), Respondent–Appellant.
JEFFREY WICKS, PLLC, ROCHESTER (JEFFREY WICKS OF COUNSEL), FOR RESPONDENT–APPELLANT. JENNIFER M. LORENZ, ORCHARD PARK, FOR PETITIONER–RESPONDENT. CHRISTINE F. REDFIELD, ROCHESTER, ATTORNEY FOR THE CHILD.
JEFFREY WICKS, PLLC, ROCHESTER (JEFFREY WICKS OF COUNSEL), FOR RESPONDENT–APPELLANT.
JENNIFER M. LORENZ, ORCHARD PARK, FOR PETITIONER–RESPONDENT.
CHRISTINE F. REDFIELD, ROCHESTER, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., CARNI, LINDLEY, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent mother appeals from an order that, inter alia, awarded petitioner father sole legal and physical custody of the subject child. We reject the mother's contention that Family Court's custody determination lacks a sound and substantial basis in the record. In making an initial custody determination, the court is "required to consider the best interests of the child by reviewing such factors as maintaining stability for the child, ... the home environment with each parent, each parent's past performance, relative fitness, ability to guide and provide for the child's overall well-being, and the willingness of each parent to foster a relationship with the other parent" ( Matter of Buckley v. Kleinahans, 162 A.D.3d 1561, 1562, 78 N.Y.S.3d 569 [4th Dept. 2018] [internal quotation marks omitted]; see Matter of Chilbert v. Soler, 77 A.D.3d 1405, 1406, 907 N.Y.S.2d 757 [4th Dept. 2010], lv denied 16 N.Y.3d 701, 917 N.Y.S.2d 108, 942 N.E.2d 319 [2011] ). We agree with the court that those factors weigh in the father's favor, particularly in light of the mother's efforts to interfere with the father's contact with the child, and thus the record supports the court's determination that it is in the child's best interests to award sole custody to the father (see Matter of Wojciulewicz v. McCauley, 166 A.D.3d 1489, 1490–1491, 87 N.Y.S.3d 422 [4th Dept. 2018] ; Matter of Marino v. Marino, 90 A.D.3d 1694, 1695–1696, 935 N.Y.S.2d 818 [4th Dept. 2011] ).
Contrary to the mother's further contention, we conclude that the court properly denied her motion to remove the Attorney for the Child (AFC), inasmuch as the motion was based solely upon unsubstantiated allegations of bias and nothing in the record establishes that the AFC failed to diligently represent the child's best interests (see Matter of Brooks v. Greene, 153 A.D.3d 1621, 1622, 61 N.Y.S.3d 403 [4th Dept. 2017] ; Matter of Petkovsek v. Snyder [Appeal No. 6], 251 A.D.2d 1087, 1087, 674 N.Y.S.2d 211 [4th Dept. 1998], lv dismissed in part and denied in part 92 N.Y.2d 942, 681 N.Y.S.2d 470, 704 N.E.2d 224 [1998] ).