Opinion
02-10-2017
Peter M. HENDRICKSON, Plaintiff–Respondent, v. Kristina L. HENDRICKSON, Defendant–Appellant. Carolyn R. Kellogg, Esq., Attorney for the Child, Appellant.
Legal Assistance of Western New York, Inc., Bath (Michaela K. Rossettie Azemi of Counsel), for Defendant–Appellant. Carolyn R. Kellogg, Attorney for the Child, Wellsville, Appellant pro se. Pulos and Rosell, LLP, Hornell (Timothy J. Rosell of Counsel), for Plaintiff–Respondent.
Legal Assistance of Western New York, Inc., Bath (Michaela K. Rossettie Azemi of Counsel), for Defendant–Appellant.
Carolyn R. Kellogg, Attorney for the Child, Wellsville, Appellant pro se.
Pulos and Rosell, LLP, Hornell (Timothy J. Rosell of Counsel), for Plaintiff–Respondent.
PRESENT: WHALEN, P.J., CENTRA, DeJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM: Defendant mother and the Attorney for the Child (AFC) appeal from an order that awarded plaintiff father and the mother joint custody of the subject child, with primary physical residence to the father and visitation to the mother. Contrary to the contention of the mother and the AFC, there is a sound and substantial basis in the record for Supreme Court's determination that awarding the father primary physical residence is in the child's best interests (see generally Eschbach v. Eschbach, 56 N.Y.2d 167, 171–174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). "The fact that the mother was the child's primary caretaker prior to the parties' separation is not determinative" (Matter of Owens v. Pound, 145 A.D.3d 1643, 1644, 44 N.Y.S.3d 318 ). The record supports the court's determination that both parents love and care for the child, but "[t]he mother is less willing to truly co-parent [the child]," and "the father is the more stable parent with a higher quality home and is better situated to serve as a primary placement parent" (see id. ; Matter of Honsberger v. Honsberger, 144 A.D.3d 1680, 1680, 41 N.Y.S.3d 816 ). Furthermore, we reject the AFC's contention that the court gave undue weight to the paternal grandparents' involvement in the child's life inasmuch as "a more fit parent will not be deprived of custody simply because the parent assigns day-care responsibilities to a relative owing to work obligations" (Matter of Chyreck v. Swift, 144 A.D.3d 1517, 1518, 40 N.Y.S.3d 849 ).
Finally, "[a]lthough the court must consider the effects of domestic violence in determining the best interests of the child[ ]," we conclude that the mother failed to prove her allegations of domestic violence by a preponderance of the evidence (Matter of Miller v. Jantzi, 118 A.D.3d 1363, 1363–1364, 987 N.Y.S.2d 745 ). "The court's ‘first-hand assessment of the credibility of the witnesses after an evidentiary hearing ... is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record’ " (Chyreck, 144 A.D.3d at 1518, 40 N.Y.S.3d 849). Here, the father denied the mother's allegations of domestic violence, and the court resolved the conflicting testimony in favor of the father. We perceive no reason to disturb the court's credibility determination (see Pierre–Paul v. Boursiquot, 74 A.D.3d 935, 936, 903 N.Y.S.2d 94 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.