Rutz v. Rutz 2014 NY Slip Op 51531(U) Decided on October 9, 2014 Family Court, Essex County Meyer, J.
Oct 09, 2014OUTCOME: Mother awarded sole legal and primary physical custody of two young children
Impact of Domestic Violence perpetrated by father against mother a key factor in deciding custody and visitation. "The principal concern in any child custody dispute is the best interests of the child ... , to be determined by reviewing such factors as maintaining stability for the child, the child's wishes, 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" (Porcello v Porcello, 80 AD3d 1131, 1133 [2011] [internal quotation marks and citation omitted]; see Farina v Farina, 82 AD3d 1517, 1518 [2011]; Matter of Grant v Grant, 47 AD3d 1027, 1028-1029 [2008]). "An initial custody determination is controlled by the best interests of the child, taking into consideration such factors as the parents' ability to provide a stable home environment for the child, the child's wishes, the parents' 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 (see Matter of Lunch v. Gillogly, 82 AD3d 1529, 1530, 920 NYS2d 437 [2011]; Matter of Torkildsen v. Torkildsen, 72 AD3d 1405, 1406, 900 NYS2d 193 (210)]", (Rundall v. Rundall, 86 AD3d 700, 701, 927 NYS2d 414, 416 [3d Dept., 2011]. Also, "the effect of any alleged domestic violence upon the children is a factor that must be considered, among others, in custody cases (see Domestic Relations Law §240[1][a]; Matter of Lopez v. Robinson, 25 AD3d 1034, 1037, 808 N.Y.S.2d 494 [2006]; see also Matter of Wissink v. Wissink, 301 AD2d 36, 39, 749 N.Y.S.2d 550 [2002])" (Kilmartin v. Kilmartin, 44 AD3d 1099, 845 N.Y.S.2d 466), plus " the effect that an award of custody to one parent might have on the child's relationship with the other parent' (Bliss v. Ach, 56 NY2d 995, 998, 453 N.Y.S.2d 633, 439 N.E.2d 349)" (Young v. Young, 212 AD2d 114, 118, 628 N.Y.S.2d 957, 960 [2d Dept., 1995]). Additionally, "[t]he Family Court was required to consider the parties' support obligations and their compliance with court orders (Domestic Relations Law §240[1][a][4]) and to evaluate each party's ability to support the child (see Eschbach v. Eschbach, 56 NY2d 167, 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260)." (Wissink v. Wissink, 301 AD2d 36, 40-41, 749 N.Y.S.2d 550, 553 [2d Dept., 2002]).