Opinion
493 CAF 14-00119
05-08-2015
In the Matter of Scott J. LAMAY, Petitioner–Respondent, v. Kimberly R. STAVES, Respondent–Appellant. In the Matter of Kimberly R. Staves, Petitioner–Appellant, v. Scott J. Lamay, Respondent–Respondent.
Davis Law Office PLLC, Oswego (Stephanie N. Davis of Counsel), for Respondent–Appellant and Petitioner–Appellant. Linda M. Campbell, Syracuse, for Petitioner–Respondent and Respondent–Respondent. Laura Estela Cardona, Attorney for the Child, Syracuse.
Davis Law Office PLLC, Oswego (Stephanie N. Davis of Counsel), for Respondent–Appellant and Petitioner–Appellant.
Linda M. Campbell, Syracuse, for Petitioner–Respondent and Respondent–Respondent.
Laura Estela Cardona, Attorney for the Child, Syracuse.
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, and DeJOSEPH, JJ.
Opinion MEMORANDUM:Petitioner-respondent father commenced this proceeding pursuant to article 6 of the Family Court Act, seeking custody of the subject child, and respondent-petitioner mother filed, among other pleadings, a competing custody petition. The mother appeals from an order that, inter alia, awarded sole legal and primary physical custody of the subject child to the father, granted the mother final decision-making authority over medical determinations if the parties are unable to agree, and set a visitation schedule that divided the parties' parenting time into specified blocks of time.
We reject the mother's contention that Family Court erred in its custody determination. The parties presented diametrically opposing testimony concerning each other's parenting skills, drug use, employment, and acts of domestic violence, and each testified in a derogatory manner regarding the other. After hearing the testimony and reviewing the evidence, the court concluded, inter alia, that both parties' testimony was “partisan to a fault, unconvincing, lacking in credibility, and significantly devoid of many details,” but further concluded that the father was the more stable parent and that the mother was likely to undermine the subject child's relationship with the father. “It is well settled ... that [a] concerted effort by one parent to interfere with the other parent's contact with the child is so inimical to the best interests of the child ... as to, per se, raise a strong probability that [the interfering parent] is unfit to act as custodial parent” (Matter of Marino v. Marino, 90 A.D.3d 1694, 1695, 935 N.Y.S.2d 818 [internal quotation marks omitted]; see Matter of Howell v. Lovell, 103 A.D.3d 1229, 1231, 960 N.Y.S.2d 278 ). Inasmuch as no other factor strongly favors either party, and the court's custody determination, which is “based upon [its] first-hand assessment of the credibility of the witnesses,” has a sound and substantial basis in the record, we conclude that it should not be disturbed (Matter of Bryan K.B. v. Destiny S.B., 43 A.D.3d 1448, 1449, 844 N.Y.S.2d 535 [internal quotation marks omitted] ).
Contrary to the mother's further contention, the court fully considered the impact of the evidence concerning acts of domestic violence by both parties in making its determination (see Domestic Relations Law § 240[1][a] ). Indeed, the court concluded that both parties engaged in “egregious domestic violence,” and we agree with the court that the best interests of the child are served by awarding custody to the father notwithstanding his actions (see Matter of Booth v. Booth, 8 A.D.3d 1104, 1105, 778 N.Y.S.2d 643, lv. denied 3 N.Y.3d 607, 785 N.Y.S.2d 25, 818 N.E.2d 667 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.