Elmer DD. v. Judy EE.

Appellate Division of the Supreme Court of New York

Elmer DD. v. Judy EE.

120 A.D.2d 889, 502 N.Y.S.2d 814, 1986 N.Y. App. Div. LEXIS 56983

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 29, 1986

StatusPublished

This text of 120 A.D.2d 889 (Elmer DD. v. Judy EE.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Elmer DD. v. Judy EE., 120 A.D.2d 889, 502 N.Y.S.2d 814, 1986 N.Y. App. Div. LEXIS 56983 (N.Y. Ct. App. 1986).

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Opinion

— Casey, J.

Appeal from an order of the Family Court of Tioga County (Siedlecki, J.), entered February 24, 1984, which dismissed petitioner’s application, in a proceeding pursuant to Family Court Act article 6, for custody of the parties’ infant child, and awarded custody of the child to respondent.

It is apparent from Family Court’s decision that, contrary to petitioner’s claim, the court did not rely upon a prima facie right of custody in awarding custody to the mother. Rather, the court found "[t]hat, based upon the totality of circumstances and the child’s best interests, the respondent is more fit than the petitioner to serve as the child’s custodial parent on a permanent basis”. Nor do we agree with petitioner’s contention that Family Court erred in failing to find respondent unfit due to her below-average intelligence, lack of education and need of assistance in learning parenting skills. There is ample proof in the record that both parties require training and assistance to enable them to provide adequate care for the infant and, as found by Family Court, respondent has demonstrated the ability to learn the necessary parenting skills. We see no basis for disturbing Family Court’s award of custody to respondent, with reasonable visitation to petitioner. Petitioner’s concerns about respondent’s ability to provide adequate [890]*890care for the child have been met by the court’s provision directing the local agency to monitor the situation and provide necessary services for the mother and child, together with the further provision directing respondent to cooperate with the local agency.

Order affirmed, without costs. Kane, J. P., Casey, Mikoll and Levine, JJ., concur.

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— Casey, J.

Appeal from an order of the Family Court of Tioga County (Siedlecki, J.), entered February 24, 1984, which dismissed petitioner’s application, in a proceeding pursuant to Family Court Act article 6, for custody of the parties’ infant child, and awarded custody of the child to respondent.

It is apparent from Family Court’s decision that, contrary to petitioner’s claim, the court did not rely upon a prima facie right of custody in awarding custody to the mother. Rather, the court found "[t]hat, based upon the totality of circumstances and the child’s best interests, the respondent is more fit than the petitioner to serve as the child’s custodial parent on a permanent basis”. Nor do we agree with petitioner’s contention that Family Court erred in failing to find respondent unfit due to her below-average intelligence, lack of education and need of assistance in learning parenting skills. There is ample proof in the record that both parties require training and assistance to enable them to provide adequate care for the infant and, as found by Family Court, respondent has demonstrated the ability to learn the necessary parenting skills. We see no basis for disturbing Family Court’s award of custody to respondent, with reasonable visitation to petitioner. Petitioner’s concerns about respondent’s ability to provide adequate [890]*890care for the child have been met by the court’s provision directing the local agency to monitor the situation and provide necessary services for the mother and child, together with the further provision directing respondent to cooperate with the local agency.

Order affirmed, without costs. Kane, J. P., Casey, Mikoll and Levine, JJ., concur.

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Bluebook (online)

120 A.D.2d 889, 502 N.Y.S.2d 814, 1986 N.Y. App. Div. LEXIS 56983, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elmer-dd-v-judy-ee-nyappdiv-1986.