Opinion
840 CAF 20-01550
11-19-2021
In the Matter of Chelsea M. CLARK, Petitioner-Respondent, v. Jackson S. CLARK, Respondent-Appellant.
TODD G. MONAHAN, LITTLE FALLS, FOR RESPONDENT-APPELLANT. THE SAGE LAW FIRM GROUP PLLC, BUFFALO (KATHRYN FRIEDMAN OF COUNSEL), FOR PETITIONER-RESPONDENT. SCOTT A. OTIS, WATERTOWN, ATTORNEY FOR THE CHILDREN.
TODD G. MONAHAN, LITTLE FALLS, FOR RESPONDENT-APPELLANT.
THE SAGE LAW FIRM GROUP PLLC, BUFFALO (KATHRYN FRIEDMAN OF COUNSEL), FOR PETITIONER-RESPONDENT.
SCOTT A. OTIS, WATERTOWN, ATTORNEY FOR THE CHILDREN.
PRESENT: WHALEN, P.J., SMITH, CARNI, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 6, respondent father appeals from an order that, among other things, modified a prior order of custody and parenting time by awarding petitioner mother sole legal and physical custody of the subject children. Initially, we note that there is no dispute that there was a sufficient change in circumstances since the prior order, and thus the issue before us is whether Family Court properly determined that the best interests of the children would be served by a change in custody (see Matter of Kakwaya v. Twinamatsiko , 159 A.D.3d 1590, 1591, 72 N.Y.S.3d 739 [4th Dept. 2018], lv denied 31 N.Y.3d 911, 2018 WL 3118124 [2018] ; see generally Eschbach v. Eschbach , 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ). In making such a determination, the court "must consider all factors that could impact the best interests of the child[ren], including the existing custody arrangement, the current home environment, the financial status of the parties, [and] the ability of each parent to provide for the child[ren]’s emotional and intellectual development" ( Matter of Marino v. Marino , 90 A.D.3d 1694, 1695, 935 N.Y.S.2d 818 [4th Dept. 2011] ). " ‘A court's custody determination, including its evaluation of [the children's] best interests, is entitled to great deference and will not be disturbed [as long as] it is supported by a sound and substantial basis in the record’ " ( Cunningham v. Cunningham , 137 A.D.3d 1704, 1705, 28 N.Y.S.3d 751 [4th Dept. 2016] ; see Matter of Dubuque v. Bremiller , 79 A.D.3d 1743, 1744, 913 N.Y.S.2d 855 [4th Dept. 2010] ). Here, we conclude that, contrary to the father's contention, the court's custody determination has a sound and substantial basis in the record. The court's determination is supported by, inter alia, evidence concerning the respective home environments of the parents, as well as each parent's respective financial stability and employment status.
We reject the father's further contention that he was denied effective assistance of counsel at the hearing when his counsel elicited what the father contends was unduly prejudicial testimony. Contrary to the father's contention, the testimony in question was relevant to the best interests analysis, and the father did not meet his burden of " ‘demonstrat[ing] the absence of strategic or other legitimate explanations for counsel's alleged shortcomings’ " ( Matter of Ballard v. Piston , 178 A.D.3d 1397, 1398, 116 N.Y.S.3d 829 [4th Dept. 2019], lv denied 35 N.Y.3d 907, 2020 WL 3422345 [2020] ; see Matter of Brandon B. [Scott B.] , 93 A.D.3d 1212, 1213, 940 N.Y.S.2d 716 [4th Dept. 2012], lv denied 19 N.Y.3d 805, 2012 WL 2094250 [2012] ).
We have reviewed the father's remaining contentions and conclude that they are either unpreserved or without merit.